Introduction
The concept of “House Without Land” where an individual owns a house but not the land beneath it, is a peculiar and controversial land tenure system practiced predominantly along Kenya’s coastal region. This arrangement contradicts the traditional legal doctrine encapsulated in the Latin maxim cujus est solum ejus est usque ad coelum (he who owns the soil owns everything above it).
Despite lacking express statutory recognition under Kenya’s current land regime, House Without Land remains deeply embedded in coastal culture, bolstered by historical roots, religious traditions, and economic necessity. Its persistence poses unique challenges to property law, urban planning, and constitutional land rights.
Defining the Concept
A house without land refers to the right to build and reside in a house on someone else’s land, often based on an oral agreement or historic occupation. There is no transfer of land title; only the structure belongs to the house owner. The house is a separate entity from the land.
In Christopher Baya & Others v Philip Kiluko[2004], Justice Khaminwa described it as “the right to build on another’s land under agreement which does not pass title to the land”.
Legal Interpretation: A Lease in Disguise?
In the landmark case Abdukrazak Khalifa Salimu v Harun Rashid Khator & 2 others [2018] KECA 151 (KLR), the Court of Appeal finally grappled with the legal nature of houses without land. The judges affirmed that, although unusual, the relationship mirrors that of a lease as defined under the (now repealed) Transfer of Property Act (TPA):
“We are persuaded by the dictum… that ‘house without land’ is a lease within the meaning of section 105 of the Transfer of Property Act.”
As such, the court held that the house owner (lessee) is entitled to:
- Notice before termination under Section 106 of the TPA.
- Right to remove the house and fixtures upon termination (Section 108(h)).
- Reasonable time to vacate the land, even where formal notice was lacking.
This interpretation provides equitable protection to house owners while preserving the rights of landowners to reclaim their property, particularly upon withdrawal of consent.
Rights and Liabilities of Parties
Under this judicially recognized lease-like framework:
- House Owners (Lessee) have rights to notice, to repair, to assign, and to remove the structures which they have built.
In the matter of Mwinyi v Bhai & another [2025] KECA 1309 (KLR), the Court held that in the event an occupier of a house without land is under the impression that the house is uninhabitable, he/she can only effect improvements to the existing structure with the consent of the owner. The occupier of the house without land, does not have an untrammelled right to effect improvement to the dwelling to the detriment of the landowner. Nonetheless, the proposed improvements nonetheless can only be necessary and reasonable so as to render his dwelling habitable, but still with the rider that the landowner must be notified of the proposed improvements.
- Landowners (Lessor) retain the right to withdraw consent, demand rent, and reclaim possession upon breach.
- Both parties bear reciprocal duties, including payment of ground rent, property maintenance, and restoration of the land upon exit.
Challenges in the Contemporary System
1. Lack of Legal Recognition
Kenya’s current land laws: the Land Act, Land Registration Act, and Constitution of Kenya 2010, do not expressly recognize houses without land. As Justice Angote observed in Alwi Mohamed Alwi v Swaleh Omar Awadh [2015], the concept appears to defy the definition of land and lease under the new legal framework.
This absence of statutory footing renders the concept legally precarious. Many house owners face eviction without compensation or recourse, despite having lived on, and invested in the land for decades.
2. Policy Contradictions
County governments, especially in the Coast, continue to approve construction permits for individuals without legal ownership or leases. This practice, though common, contradicts national land policy and encourages informal tenure systems as the Court observed in the Alwi v Swaleh case.
3. Access to Justice and Compensation
Where consent is withdrawn, courts have occasionally ordered that the house owner be given the option of negotiated compensation; however, this is not guaranteed. In Salimu, the court declined to compel compensation, emphasizing instead the lessee’s right to vacate with reasonable notice.
Why the Concept Persists
Despite its legal uncertainty, House Without Land persists for several reasons:
- Affordability: It enables low-income individuals to own homes without purchasing expensive land.
- Cultural Norms: Coastal communities often rely on oral agreements and family traditions over formal land registration.
Conclusion
The House Without Land phenomenon is both a legal paradox and a social reality. Courts have stepped in to interpret and protect interests where the law is silent, but a permanent solution requires policy and legislative action.Contractual remedies, including formal agreements and compensation clauses, should be introduced to transition away from informal tenures.
For now, the system continues to straddle custom, equity, and judicial pragmatism despite the existence of a new dispensation of laws.
Recommendations:
- Parliament should enact clear regulations on informal tenure arrangements like houses without land.
- County governments must align development approvals with national land policy.
- Citizens entering such agreements should formalize them as leases or license contracts to safeguard their interests.
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By: Sheila Mwikali
