The Concept of a House Without Land in Kenya

Introduction

Land in Kenya is defined to include: the surface of the earth and the subsurface rock; any body of water on or under the surface; marine waters in the territorial sea and exclusive economic zone; natural resources completely contained on or under the surface; and the air space above the surface. The Kenyan Constitution classifies land as public land, community land, or private land, with the forms of land tenure being: freehold; leasehold; partial interest; and customary land rights.

The Environment and Land Court in Kenya recognises the land question within the coastal region, especially within Mombasa County, to be complex due to its peculiar historical and legal origins. The region is in a unique position because of its geographical positioning and peculiar historical nuances, unlike the other parts of the country. 

The concept of a house without land

Where a person is the registered owner of a parcel of land, there is a conclusive presumption that he is also the owner of all buildings of whatever kind on that land. Under the Mohammedan Law and the Land Titles Act, Cap. 282, (applicable to the Coastal region and partly repealed the Mohammedan law, but has also since been repealed), a building erected by one person, even by a trespasser, on the land of another does not become attached to the land but remains the property of the person who erected it.

The Land Titles Act, which was enacted in 1908, recognised the interesting concept of “owning a house or coconut trees without land.” It was followed by the enactment of the Eviction of Tenants (Control) (Mombasa) Act, Cap. 298, which came into effect on 31 December 1956 and remained in force until 31 December 1969 as stipulated in Legal Notice No. 359 issued on 23 December 1966 by the then Minister for Housing, Hon. Paul Ngei. Section 2 of this Act defined a “house” to mean any building or erection used as a piece of residence and constructed on land which is not owned by the owner of such building or erection. Although the Eviction of Tenants (Control) (Mombasa) Act ceased to be in force in 1969, many people in the coastal region, and especially within Mombasa County, still own houses without land and pay a monthly rent to the owner of the land.

Kenyan courts have relied on the case of Famau Mwenye Ali & 19 others v Mariam Binti Said [2010] KEHC 3559 (KLR) to describe the concept of a house without land as a unique land tenure system where the owner of the house is different from the owner of the land on which it stands. This land tenure system defies the common law concept of land expressed in the Latin maxim cujus est solum ejus est usque ad coelum meaning ‘whose is the soil, his is also that which is above it.’ In a “house without land” arrangement, a person has the right to build their house on another person’s land under an agreement which does not pass the title to the land. Judges have likened this unique land tenure system to a lease determinable by either effluxion of time or notice given by either party in accordance with the lease agreement or as stipulated by law in reference to the period in which rent is paid. Such interests, however, should be noted on the certificate of title. 

It is common in the coastal region for buildings to be erected upon the land of another person in consideration of a monthly rent. The concept of owning a house or coconut trees by a person who is not the owner of the land was and is still being used by absentee landlords to either generate an income for themselves or to forestall the claim of adverse possession by people who would have stayed on such parcels of land for more than twelve years. 

Rights of an owner of a house without land

The Environment and Land Court in Alwi Mohamed Alwi v Swaleh Omar Awadh [2019] KEELC 4926 (KLR) set out the position that since the owner of a house without land is not the owner of the land, their right to occupy the portion of the land on which their house stands should be premised either on a lease or sale of that particular portion of the land. The Court added that that portion of land should be properly described, and its dimensions given to give it a distinct identity.

Courts have clarified that a landowner or owner of a house without land has no property in air and light, but that what his land or house ownership gives him is a natural right to the use of air and light. The owner of a house without land cannot stop the registered proprietor of the land from developing his property simply because the development will impede free flow of air or light or the view of the owner of the house without land. 

The general position is that, in law, there is no right to an unobstructed view. A landowner cannot protect the view that he has from that land, as doing so would unduly limit the freedom to build on one's own land and thereby hinder beneficial development. Generally, homeowners have no right to a view, light, or air, unless it has been granted in writing by a local ordinance or subdivision rule. The exception to this general rule, as recognized by Tara J. Foster in Securing a Right to View: Broadening the Scope of Negative Easements, 6 Pace Envtl. L. Rev. 269 (1988), is that someone may not deliberately and maliciously block another's view with a structure that has no reasonable use to the owner. A landowner or owner of a house without land has no legal right to the light and air unobstructed from the adjoining land unless there is an easement. There can be no private right to an unobstructed view without an express easement or restrictive covenant. A property owner or owner of a house without land cannot complain about interference with a view resulting from the lawful erection of a building or other structure on the adjoining land. 

The most recent jurisprudence on the concept of a house without land by the Court of Appeal in Mwinyi v Bhai & another [2025] KECA 1309 (KLR) established that a purchaser of a house without land has no right to alter the structure of the house or deal with the land itself in any manner without the consent of the landowner. The Court added that the occupier of a house without land does not have a right to effect improvement to the house to the detriment of the landowner, unless such improvement is necessary and reasonable to render the house habitable, but still with the rider that the landowner must be notified of the proposed improvements. 

Challenge of the concept of a house without land

Kenya’s current land law regime does not expressly recognise the concept of a house without land. This means that there is no clear legal provision or statutory foundation on how the concept works as it is subject to judicial interpretation. As a result, many owners of houses without land could potentially be evicted without any compensation or recourse despite having resided on and invested in the land for a long time. The enactment of clear laws and regulations to govern the tenure of a house without land by Parliament would resolve the legal ambiguity surrounding the operation of the tenure. Additionally, owners of houses without land should formalise their agreements with landowners by entering into leases to safeguard their proprietary interests in the event of eviction.

Conclusion

The unique concept of a house without land is one that has perplexed scholars and courts alike. Kenyan courts hold the position that a purchaser/an occupier of a house without land does not have proprietary rights over the house they occupy or the land that it sits on. Rather, a purchaser/an occupier of a house without land is merely a lessee and thus, cannot make any improvements or renovations to the house without the prior consent of the landowner. Further, in order to be permitted by the landowner, such improvements or renovations must be necessary and reasonable so as to render their dwelling habitable.