What is so Free About Freehold Land in Kenya?

There exists a distinct variation in quality of development between freehold, leasehold and public
land in Kenya. While development on freehold land and customary land looks jumbled,
uncontrolled and lacking planned guidance, development on leasehold and public land looks
more presentable, planned and controlled. This observation has pricked my curiosity to
investigate what exactly is free about freehold land in Kenya. Does freehold mean (and it tends
to imply so) land holders have the right to use (and even abuse) the land in any manner they
want? Does the government have any right to compel freeholders to use their land in a certain
manner?
Recently the Government of Kenya amended section 5 of the Land Act of 2012 to include the
following proposition, save as provided for in the constitution, a registered proprietor shall not,
for the purpose of obtaining planning permission be obliged to surrender the freehold interest in
exchange for leasehold. This clearly demonstrates the previous legal perception of freehold land
in Kenya; that it cannot be interfered with by the government for planning or development
control purposes unless the owner surrenders the freehold interest to the government in exchange
for leasehold. In other words, the Government for a long time believed that freehold land is
beyond its planning and development control mandate and that it had only a right to guide and
control development on land under its radical ownership. So, the Government and land
practitioners have for a long time mistakenly confused freehold title as implying free-use!
Freehold land covers over 70% of all the privately owned land in Kenya. Freehold is a type of
land tenure perceived to grant the highest amount of rights to the owner. Land tenure is thought
of as a generic concept with different interpretations and connotations which explains how
people approach and think about land; specifically it implies the manner of occupying and
holding rights of ownership in land. Thus, land tenure is a model (customary or legal) of holding
rights to land. Land tenure is therefore one of the key concerns of land administration systems.
Freehold land on the other hand provides unlimited rights in land to use and dispose in perpetuity
subject to the rights of others and the regulatory powers of the national government, county
government and other state organs. While this is the official and legal position of the
Government on freehold land in Kenya, the perceptions of land owners, land use planners and
other landed experts seem to be trapped in a skeptical chasm. In this article am going to use an
ontological approach to dispel the popular conception that freehold land owners have the right to
use their land in any manner they want.
In our desire to seek for meaning of freehold we sought to know what is free in freehold or
whether freeness of use (free-use) exists in freehold concept or whether free-use is implied in
freehold concept. In this case we are interested in the nature of freehold. What properties define
freehold? Is state guided and controlled development a manifestation of lack of freeholdness?
Does uncontrolled development imply presence of freeholdness?

The term Freehold is a combination of two meanings: Free and hold. The word free relates
to freedom or absence of undue restriction and an opportunity to exercise ones rights and
powers; absence of coercion, or constraints in choice or action (Merriam-Webster dictionary).
Freedom is related to freewill, which connotes the right to do what one wishes. The word Hold,
means to have and keep in ones grasp; to keep from getting away or to keep in custody (Free
dictionary). In the word freehold, the free element is a descriptive component of hold, which
defines the type of holding which is free as opposed to others which may be unfree or restricted.
So free in freehold tenure refer to the nature of holding or ownership and should not have
any effect on usage.
It should be noted that a land title has two main elements: ownership and usage. Of the two
elements therefore, freeness in freehold tenure refers to ownership and not usage. In this case, its
clear that while the ownership in freehold tenure is free of any restriction in terms of time of
holding and cost of holding , usage may be restricted, controlled, or guided depending on
changing social and environmental needs and aspirations of the community. According to
Mwangi (2016) freehold should be viewed within the context of time and not use. Application
of freeness on the user side of the title would have led to concoction of a term of free-use land
which would then have allowed land holders to use or abuse land in any manner they want.
Freehold tenure has been defined as unrestricted possession or ownership of land; ownership of
indeterminate duration or in perpetuity (Wikipedia free dictionary). Freehold tenure does not in
any way imply the owner has a right to do what he wishes on the land. Free ownership is
restricted to rights to use, control, dispose, and exclude others, free of any fees and in perpetuity.
Freehold land tenure does not imply that a registered proprietor may utilize land at the whims of
personal preference.
The implication of the amendment to section 5 of the land act now becomes clear. You can enjoy
your freehold tenure but still have no rights to do whatever you want on your land! The
Government has now accepted that it has power to guide and control development on freehold
land all over the country. What this further means is that, an individual desiring to obtain
development permission (user component of title) on his freehold title will have it granted
without the necessity of surrendering his freehold right to the Government. The government has
taken absolute control of development permission title (or planning title) on freehold land.
However some ambiguities still linger around this proposal. Does this include all freehold land in
both urban and rural areas? What type of development is the Government holding sanction for
permission for? That is, what development are people allowed to undertake on freehold land at
their discretion (without need for permission from government)? What type of developments will
require permission and under what circumstances? How are the permits going to be
implemented? It looks like land administrators have finished their work, over to you physical
planners!
What we need therefore to do, is to find a legally binding and socially acceptable mechanism to
drive achievement of controlled, efficient, optimally desired and sustainable development on
freehold land in both rural and urban centres. Where do we start? The land act defines freehold
as the unlimited right to use and dispose of land in perpetuity subject to the rights of others and
the regulatory powers of the national government, the County government and other relevant

state organs. The National and County governments have regulatory power over all freehold
land. This means that they have power to guide, restrict and control development on this type of
land not only in urban centres but also in rural areas. Freehold land is not meant for free-use for
ownership that is in perpetuity and free of any costs. So, sooner than later the Government will
not be wrong to stop you from growing Maize and compel you to grow sisal is your freehold
land falls in an area zoned for sisal growing. However before this happens, more needs to go in:
more critical and informed thinking by scholars, focused negotiation between different
stakeholders across cultures; and public awareness and education.
RONALD MATENDE OMWOMA
Land Administration Expert and Registered Physical Planner.
matomron@yahoo.com