Double Allocation of Land
Double allocation of land occurs when a specific un-alienated government land is allotted to two different persons. Under Section 12 of the Land Act, the government is expected to eliminate incidents of multiple allocations of land and allocate land through public auctions except for land earmarked for the support of livelihoods in urban and rural areas. See; Sessional Paper No. 3 of 2009 on National Land Policy, August, 2009; pg. 19
In the case of African Inland Church – Kenya (Registered Trustees) v Catherine Nduku & 12 others [2017] eKLR; L. Gacheru stated that if there is double allocation, the land that was first to be registered will prevail as equity provides, the first in time prevails, see the case of Gitwany Investment Ltd vs Tajmal Ltd & 3 Others, Nairobi HCC No.1114 of 2002, the Court relied in the words of the Court of Appeal in Wreck Motors Enterprises vs Commissioner of Land C.A No.71/1997 where it was held that:-
“……like equity keeps teaching us, first in time prevails so that in the event such as this one, unlike by mistake that is admitted, the Commissioner of Lands issues two titles in respect of the same parcel of land, then if both are apparently and on the face of them issued regularly and procedurally without fraud save for the mistake, then the first in time must prevail. It must prevail because without cancellation of the original title, it retains its sanctity”
Furthermore, the case of M’Ikiara M’Rinkanya & Another vs Gilbert Kabeere M’Mbijiwe, (1982-1988) 1KAR 196 supports the principle that where there is a double allocation of land, the first allotment prevails and there is no power to allot the same property again. (See also Kariuki vs Kariuki (1982-88) KAR 26/79 and Otieno and Matsanga, (2003) KLR 210).
Article 40 of Constitution of Kenya, 2010 provides for protection for right to property that is acquired legally and the State is prevented from depriving a person property of any description. The person who acquires land becomes the indefeasible and absolute proprietor of the suit land as provided by Section 26(1) of the Land Registration Act of 2012.
Section 26 of the Land Registration Act reads thus;
“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:-
- On the ground of fraud or misrepresentation to which the person is proved to be a party: or
- Where the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme.”
An absolute proprietor, such right attaching to it can only be defeated by operation of the law as provided by Section 25(1) of the Land Registration Act which reads thus;
- (1) The rights of a Proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject:-
- to the leased, charges and other encumbrances and to the conditions and restrictions if any, shown in the register; and
- to such liabilities, rights and interests as affect the same and are declared by Section 28 and to require noting on the register, unless the contrary is expressed in the register.”
Furthermore, in the case of Dr. Joseph N. K. Arap Ngok vs Justice Moijo Ole Keiuwa & Others, Nairobi Civil Application No.60 of 1997, it was held that:-
“Section 23(1) of the Act gives an absolute and indefeasible title to the owner of the property. The title to such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and law takes precedence over all the alleged equitable right of title. In fact, the Act is meant to give such sanctity of title, otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya would be placed in Jeopardy”.
To avoid double allocation, Section 14 of the Land Act provides that before allocating any public land, the Commission is expected to issue, publish or send a notice of action, to the public and interested parties, at least thirty days before, offering for allocation, a tract or tracts of public land.
Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 defines a controlled tenancy as a tenancy of a shop, hotel or catering establishment which;
- Has not been reduced into writing; or
- In the event that it has been reduced into writing and which;
- Is for a period not exceeding five years; or
- Contains a provision for termination, other than for breach of covenant, within five years from the commencement thereof; or
- Relates to premises of a class specified by notice in the Gazette by reference to rent paid or rateable value entered in valuation for Rating Act (Cap 266), classes of shops, hotels or catering establishments tenancies of which shall be regarded as controlled tenancies regardless of the form or period of such tenancies.
The exception to this provision is that there shall not be a controlled tenancy where the Government, community or local authority is a party; whether landlord or tenant.
The Act is intended to protect tenants from the exploitation and eviction from business premises by the landlord.
The supremacy of the Act when compared with other statutes applicable on tenancies derives from Section 2 (3) which implies that where there is a controlled tenancy, all other statutes relating to the matter and in conflict with the Act should be disregarded.
Termination of a Controlled Tenancy
Section 4 of the Act provides that a controlled tenancy cannot be terminated nor the terms or conditions, rights or services enjoyed be altered except as provided for in the Act and for the grounds specified in Section 7.
It also provides that a landlord who wishes to terminate a controlled tenancy or to alter to the detriment of the tenant any term or condition or right or service enjoyed shall give notice to the tenant in the prescribed form. (FORM A)
The same concept also applied to a tenant who wishes to obtain a reassessment of the rent or alteration of any term or condition or right or service enjoyed by him shall also give notice in the prescribed form. (FORM A1)
The minimum prescribed notice period should not be less than two (2) months from the date of receipt thereof and the termination notice must also inform the tenant of his right within one (1) months from the date of the notice to communicate to the landlord of whether or not he intends to comply with the notice or oppose it.
A receiving party who wishes to oppose a tenancy notice and has notified the requesting party of the same may refer the matter to a Tribunal and such notice shall have no effect until the determination of the Tribunal.
Grounds for Termination as Provided for Under Section 7
- The tenant’s failure to comply with the obligations in respect of repair and maintenance of the Premises as comprised in the Agreement;
- Default in payment of rent for a period of 2 months after such rent has become due;
- Commission of substantial breach of obligations under the Agreement and is connected with the tenant’s use or management of the premises;
- That the landlord has offered or is willing to provide or secure the provision of alternative accommodation for the tenant and the terms which provide for the same are reasonable and accommodation suitable for the tenant’s requirements;
- That the tenancy was created by subletting part of the premises whereby the landlord is the owner of the interest in that upon termination of the superior tenancy, the landlord requires possession of such premises as a whole for the purpose of letting or disposing the same as a whole;
- That upon termination of the tenancy, the landlord intends to demolish or reconstruct the premises or a substantial part thereof or carry out substantial work of construction on the premises or part and that he could not reasonably do so without obtaining possession of such premises; and
- That on the termination of the tenancy, the landlord himself intends to occupy the premises for a period of not less than one year for the purposes or part purposes of a business to be carried out by him or as residence.
Where the landlord permits the tenant to continue holding over the Premises after the termination of the original protected tenancy and continues to accept rent, the tenancy between the parties will resume being a protected tenancy.
Consequences of A Controlled Tenancy
- Grounds for Termination by Tenant
It is important to note that the Act does not provide for grounds on which a tenant can terminate a controlled tenancy however, if the tenant wishes to obtain a reassessment of rent or alter terms of the agreement, he must do so in accordance Section 4.
- Failure to Notify
If the tenant does not notify the landlord of the willingness to comply with the notice or to refer the matter to the Tribunal, then such notice will have effect from the date therein specified to terminate the tenancy, alter the terms and conditions or rights and services enjoyed under such Agreement.
The tenant automatically loses his ‘protected’ status at the expiry of the notice period and in the event of such a termination, the Tribunal is prohibited by law from having any legal jurisdiction in the matter. This means that the landlord can take the possession of the premises from the tenant, if this can be done peacefully but if the tenancy refuses to part with possession of the leased premises, the landlord will be obliged to seek eviction orders from the court.
- Grounds of Termination
On seeking to terminate a tenancy, the landlord must rely on one or more grounds as provided for under the Act. However, a landlord should not seek to terminate the tenancy and at the same time alter terms and conditions of the tenancy. This is because Section 4 uses a disjunctive “or” implying that a notice should not have double-barreled effect for example; the landlord cannot seek to terminate the tenancy as well as increase the rent.
- Time Consuming
In the event that either party wishes to refer the matter to the Tribunal, such notice will have no effect and the tenancy shall not be terminated until such matter has been decided upon by the Tribunal or the Court in the case of an Appeal.
- Payment Of Double Rent
Where the tenant gives the notice to terminate the tenancy, he must vacate the premises at the expiry of the notice period and failure to do so would make such a tenant liable to pay double rent for the period of holding over as provided for in section 14 of the Distress of Rent Act (Cap. 293).
- Effect Of Notice To Alter Terms And Conditions (Tenant)
With regard to a notice to alter the terms and conditions of a controlled tenancy, it is important to note that a tenant’s notice does not have a binding effect as that of a landlord’s notice as provided for under Section 10 of the Act. The courts have held that with regard to alteration of terms and conditions of the tenancy or increase of rent, section of the Act 10 applies only in the event of a landlord’s notice and never in the case of a tenant’s notice.
Authored by: Beth Ng’ang’a