The Constitutionality of Tenancy at Will

Laurenco K. Karisa & 3 others (Suing on their own behalf and on behalf of Forty Six (46) others, as individuals and members of Ushindi Self Help Group) v Salim Ali Jemadar as Administrator of Jemadar Amin & 6 others [2017] eKLR

Constitutional Petition No 58 of 2013

Environment and Land Court at Mombasa

A.Omollo, J

December 15, 2017

Reported by Kakai Toili

Land Law–tenancy relationship – types of tenancy – tenancy at will - whether the concept of tenancy at will was unconstitutional

Constitutional Law - fundamental rights and freedoms – right to housing vis a vis right to property –whether the right to housing of occupants of a land parcel superseded the rights to property of the registered owner of the land- Constitution of Kenya, 2010 article 40 & 43(b)

Land Law – National Land Commission – functions of the National Land Commission – where the land was private land - what was the function of the National land commission with regard to private land - Constitution of Kenya, 2010, articles 40, 62, 64 & 260 

Land Law– tenancy relationship - eviction of tenants – procedure to be followed before eviction of tenants –what was the procedure to be followed before eviction of tenants

Brief Facts:

The 1^st Respondent was the registered owner of the Suit Property as an administrator of the Deceased’s estate by way of transfer by assent.  The 1^st Respondent undertook sub-division of the main title into sub plots.  He offered the sub-plots for sale to the occupants of the land which include the Petitioners.  Some of the occupants accepted his offer and he had since given individual titles to such people who already paid for their land.

It was alleged that the Petitioners had not given the 1^st Respondent any counter-offers with respect to purchase of the suit property.  It was alleged that the Petitioners had not been paying ground rent for some time and especially from the year 2010.  It was also alleged that the Petitioners had entered the Suit Property with the consent of the 1^st Respondent and his relatives on terms that they would pay ground rent and stand premium as well as on understanding that the land would be sub-divided and transferred to them.

Aggrieved by the decision of issuing the 1^st Respondent title to the Suit Property, the Petitioners filed the instant Petition.

Issues:

1. Whether the concept of tenancy at will was unconstitutional.
2. Whether the right to housing of occupants of a land parcel superseded the rights to property of the registered owner of the land.
3. What was the function of the National Land Commission with regard to private land?
4. What was the procedure to be followed before eviction of tenants?

Relevant Provisions of the Law:

Constitution of Kenya, 2010

Article 40 - Protection of right to property

1. Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property—

1. of any description; and
2. in any part of Kenya.

2. Parliament shall not enact a law that permits the State or any person—

1. to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or
2. to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27(4).

3. 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—

1. results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five;

or

2. is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—

1. requires prompt payment in full, of just compensation to the person; and
2. allows any person who has an interest in, or right over, that property a right of access to a court of law.

4. Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.
5. The State shall support, promote and protect the intellectual property rights of the people of Kenya.
6. The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.

Article 43 - Economic and social rights.

1. Every person has the right—

 (b) to accessible and adequate housing, and to reasonable standards of sanitation;

Article 62 - Public land.

1. ….
2. Public land shall vest in and be held by a county government in trust for the people resident in the county, and shall be administered on their behalf by the

National Land Commission, if it is classified under—

1. clause (1)(a), (c), (d) or (e); and
2. clause (1)(b), other than land held, used or occupied by a national State organ.

3. Public land classified under clause (1)(f) to (m) shall vest in and be held by the national government in trust for the people of Kenya and shall be administered  on their behalf by the National Land Commission.
4. Public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use.

Article 64 - Private land

Private land consists of —

1. registered land held by any person under any freehold tenure;
2. land held by any person under leasehold tenure; and
3. any other land declared private land under an Act of Parliament.

Article 260 – Interpretation

In this Constitution, unless the context requires otherwise—

“land” includes—

1. the surface of the earth and the subsurface rock;
2. any body of water on or under the surface;
3. marine waters in the territorial sea and exclusive economic zone;
4. natural resources completely contained on or under the surface;

and

5. the air space above the surface;

Held:

1. The 1^st Respondent and his relatives granted the Petitioners permission to occupy the suit property, it was definite that their registration as the owner of the Suit Property preceded the occupation of the Petitioners.  By virtue that the title of the Suit Property was issued long before the rights being claimed by the Petitioners were put into law, the said rights could  not have been applied ante-the Constitution of Kenya, 2010.  The law did not apply retrospectively.  The Petitioners claim that their rights overrode the rights of the 1^st Respondent did not have any legal foundation to stand on.
2. The Petitioners agreed to take occupation on fulfillment of certain conditions. They could not use the Constitution to enforce those rights for which were as a result of their being in breach of the agreement voluntarily entered into as between them and the 1^st Respondent.
3. There was no provision of the law that required any or either of the Respondents to provide the Petitioners with access to housing.
4. The Petitioners having come on the Suit Property with the consent of the 1^st Respondent who derived his rights from a person that acquired title long before the Petitioners, their rights could not have superseded those of the 1^st Respondent that were first in time.
5. Where evictions were necessary, the state and all persons were bound to observe certain procedural requirements on evictions to include:
   1. An opportunity for genuine consultation with those affected.
   2. Adequate and reasonable notice to those affected.
   3. Information on the proposed eviction
   4. Eviction not to render individuals homeless or vulnerable to violation of other human rights.  

In the instant case the 1^st Respondent had given the Petitioners the first opportunity to buy the land and demand notice had been served.  It was incumbent upon them to have taken the offer so that they could not be rendered homeless and for the 1^st Respondent to be adequately compensated for his property.

6. The Petitioners were on the land by virtue of the concept of house without land that was recognized under the Land Titles Act (repealed) under which the title was created and which was a common practice in the Coastal Region of Kenya. The Land Titles Act had since been replaced by the Land Act and the Land Registration Act. In the Constitution of Kenya (repealed), there was no definition of land given and what was applied was the common law definition.  The Constitution of Kenya, 2010 defined land under article 260.
7. Article 64 of the Constitution described private land as consisting of registered land held by any person under freehold tenure, land held by any person under leasehold tenure and any other land declared private land under an Act of Parliament. 
8.  The rights of a private land holder were protected under the provisions of article 40 of the Constitution. Article 62 gave the 6^th Respondent authority to administer public land and not private land. The Petition related to private land. The 6^th Respondent could only have investigated the Suit Property it if it was public land that had been illegally acquired or irregularly allocated. No evidence was produced to show that the land was at one time public land for the Court to direct the 6^th Respondent to investigate it. The burden of proof always lay with the person alleging.
9. The Constitution did not make any reference to the concept of tenancy at will. The Constitution had clearly specified the classification of land holding in Kenya. The Petitioners claim did not fall under any of the classifications specified therein. It behoved logic to ask the Court to declare as unconstitutional that which the Constitution did not know or recognise.
10. The relationship between the Petitioners and the 1^st Respondent could be equated to one of landlord and tenant.  Either party could terminate and or vary the terms of that relationship upon serving adequate   notice. Similarly, either party could enforce their rights if any under that contract against the party that was in breach. 
11. Either party could enforce their rights if any under a contract against the party that was in breach. In the instant case that was recovery of ground rents owing and due. That kind of relationship was not known in law to be capable of depriving an owner of his right over land or his ownership rights unless with the consent of both parties such as through sale.
12. The contract was entered into consensually and no evidence of whatsoever coercion or duress had been shown to have been imposed on the Petitioners at the time they were getting into the Suit Property or agreeing on the amount of ground rent to pay per month. That relationship could not be declared as null and void for being contrary to the rules of natural justice or fair administrative action. 
13. The 2^nd, 3^rd, 4^th and 5^th Respondents action of issuing the 1^st Respondent with title to the Suit Property was lawful.
14.  The Petitioners had chosen the wrong format to ventilate their claims if any.  While they annexed evidence of some payment, the pleading as filed did not permit the Court to make a determination that they were payments towards purchase price and or settling of outstanding ground rents because courts could not make contracts for parties. 

Petition dismissed, costs to the 1^st Respondent; No costs to the 2^nd to the 7^th Respondents.