Housing Rights in Kenya; Is the

Condominium concept a panacea for

the current Housing Shortages in
Kenyas urban areas? Conveyancing
practice of Condo interests through
Sectional Titles and Subleases.
1.0 Introduction

This paper critically examines the question of Housing Rights in Kenya

The paper also seeks to briefly discuss the current methods of
conveyancing of condominium interests.

Kenya like many other developing countries is urbanizing rapidly.

Kenyas towns and cities are growing at an unprecedented rate owing to the rise in
numbers of people in search of hope and economic opportunities in towns and cities.
Kenyan towns and cities are the hubs of much of the countys national production,
consumption, economic and social processes that generate wealth and opportunity.
The Phenomenon of urbanization is not alien to Kenya alone. It is world wide. As global
populations soar, most of the worlds cities will experience increased population growth
owing to migration in search of the better life.
By the end of 2007 it is also estimated that 1 billion people will live in slums.
 UN habitat estimates that by 2050, some 6 billion people representing two thirds of
humanity will be living in towns and cities.

These large numbers of people will, unless urgent proactive measures are taken now
to better plan our towns and cities, live in urban slums or informal settlements.

Today 1 billion people or 1 of every 3 urban dwellers live in slums.

UN habitat latest report published 2006/7 says that half of the words population live
in cities.

In Kenya it is estimated that about 72% of the total urban population live in slums.
Kibera which is situate in Nairobi Kenya is reputed as Africas largest slum.

Most of Kenyas towns and cities are places of considerable despair with large
proportions of slum dwellers living in job-lessnes and hopelessness and lacking in
amenities such as water, electricity shelter, and basic sanitation facilities.

Kenya s slums and informal settlements are also overcrowded and have been
described as breeding grounds for criminal gangs and Aids.

Social ills such as prostitution are also wide spread in slum areas.
 Slums are also places where considerably high levels disease, pollution,
poverty and social crime, can be witnessed.

Kenya is a developing country. How we manage the ongoing rapid

urbanization is arguably one of the biggest challenges facing our
government, local government authorities, the private sector, UN agencies
involved in housing and infrastructure development and NGOs propagating
human rights.

2.0 Housing rights are human rights

Housing is an issue that is intimately connected with the basic trait of being
a social being.
 All human being need to live in collective, safe secure and meaningful
habitats.

Housing is the central hub of everyday living.

Housing is a multi-dimensional concept that encompasses the human

settlement characteristic of the house, (physical structure and design);
home ( social and psychological features); and neighborhood (physical and
social characteristics and local services.

In Kenya many people are deprived of the basic amenities that are required
to settle and live at minimum standards of basic human decency.

Housing rights are closely linked to the right to life and have thus been
recognized as fundamental human rights in many countries.

As a human rights, housing rights has been recognized internationally.

International human rights law has been designed to protect the full range of
human rights required for people to live a full, free, safe, and secure healthy
life.

The right to live a dignified life cannot however be attained unless all the
basic necessities of life such as work, food ,housing, healthcare, education
and culture are adequately and equitably available to everyone.
 The right to adequate housing has been recognized as a component
to the right to a decent standard of living with the adoption of the
Universal Declaration of Human Rights in 1948.
The right to Housing has been recognized in the International
Covenant on the Economic Social and Cultural Rights (ICESCR).
Article II of the ICESCR states that parties recognize the right of
every one to an adequate standard of living for himself and
family including adequate food, clothing and housing and the
continuous improvement of living conditions.

In 1996 World leaders reaffirmed the right to adequate housing

when adopting the Habitat Agenda at the 2nd United Nations
Conference on Human Settlements.
 3.0 Kenyas Housing Policy and
related Legislative frameworks.
In Kenya no single piece of national legislation
provides comprehensive protection of housing
rights as enshrined in international law.

Yet effective constitutional and legislative

measures on various aspects of the right to
housing are not only desirable but have indeed
already been used successfully in a number of
countries such as Britain India and the USA.
 Yet effective constitutional and legislative measures on
various aspects of the rights to housing are not only
realistic and desirable but have indeed already been
used successfully in an number of countries, such as
India, Britain, USA.
In Kenya the rights of housing and the obligation of the
state to provide adequate housing and connected
infrastructure especially for the poor has not been given
as much prominence as the obligation of the state to
steer economic growth, provide of jobs and/or the
provision of infrastructure.
Talk about infrastructure in Kenya and all people think
about is bad roads. Hardly do you hear citizen
complaining about the mushrooming of slums, lack of
shelter, healthcare and inadequate sanitation facilities
and especially in our towns and cities.
 Are Kenyan forever complaining of bad road or oblivious of their
other rights such as the right to descent housing and related
infrastructural services such as water and basic sanitation ?
In 2006 a Draft Housing Bill was published but the same was
never enacted into law by the 9th parliament.
Kenya has a National Housing Policy, Sessional paper No.3 of July
2004.
To what extends has the policy been operationalized to deal with the
widespread urban housing deficit? The policy identifies housing
vulnerable groups to cover the poor, women, children, the elderly,
displaced and disable persons. What about the retirees living in the
urban areas? Civil servants, low and middle income earners, Jua-
kali entrepreneurs etc.
Whose obligation is it to provide these groups with decent housing
and related services?
All these groups are in Kenyan urban areas and in urgent need of
proper housing and connected infrastructural services.
 4.0 Other relevant legislation
related to Housing Rights
Kenya has other relevant legislation touching on matters of urban
housing and some of these include;
The Local Government Act Cap 265 of the Laws of Kenya;
The Physical Planning Act 1996;
The National Housing Corporation Act;
The Sectional Properties Act 1987;
The Registration of Titles Act Cap 281 of the Laws of Kenya;
The Government Lands Act;
The Registered Land Act;
The Land Titles Act Cap 282 of the Laws of Kenya;
The Government Lands Act Cap 280 of the Laws of Kenya;
3.0 In the Concept of subleases,
sectional titles a panacea to Kenyas
housing problems.
Kenyas urban populations continue to spiral yet
our land is finite. The size of land remains
stagnant as urban populations continue to grow.
The National Housing Policy for Kenya
recognizes the importance of private and public
sector actors in housing and infrastructure
provision.
The 7% growth in the economy between 2002
2007 has seen numerous private sector
(developers) invest in housing provision.
 The increased investments on housing provisions is also
attributed to liberalized lending by the banks and the
quest to provide more affordable housing by public
sector actors, such as NSSF, NHC, Central government
to their employees and general public.
 5.0 conveyancing of housing rights through subleases
and sectional titles. How can these forms of title
could alleviates the current housing deficit in
Kenyas areas

Kenyas urban areas are increasingly overwhelmed by large numbers of rural urban immigrants.
Urban populations are also soaring due to the factors outlined herein-above.
The need for urban housing have led to lots of investments by private developers the motivation
being the quick and huge profits that accrue from these particular investments.
Investments in the real property market has also led to considerable professional work for
lawyers, architects, engineers, valuers, estate agency professionals, planners, etc.
Due to the finite nature of land a lot of developers are opting to build flats and/or apartments.
Planning and budgetary restrictions have however led to fewer units than the actual potential of
the land.
There has not been a lot of development for low cost housing for the low and middle income
earners
Most of these developments by private sector actors are not necessarily supported by the required
infrastructural services necessary for the developments such as water, sewer, roads, etc.
A lot of planning issues are ignored and zoning requirements are not necessarily obeyed.
 6.0 what is the sub-lease concept?
The sublease concept applies mostly to ownership of high rise apartments on the same parcel of land. In Kenya
this phenomenon is hardly 25 years.
The sublease concept is based on the abstract reasoning that each floor of apartment block is a separate parcel
capable of subsisting and thus alienation.
The sublease concept is also based on the reasoning that land supports or can support various estates and
interests capable of ownership and alienation.
Several person can own various interests in the same piece of land simultaneously.
Under the sub-lease concept developers issue leasehold interests for the remainder of their terms in the land.
The sublease is registered against the Title of the developer for the parcel of land on which the building rests or is
situate. Once the lease is registered it then becomes the title for the apartment or flat.
Most of these leasehold interest are issued in respect of government or local authority leases.
The buyer of the flat or apartment acquires a lease from the developer who is a normally a lessee of the
government or a local government authority.
The developer must however transfer its right to the reversionary interest in the property to a management
company in which all the tenants in the development have shares.
The management company is normally incorporated by the developer before the commencement of the sale and
purchase process of the units.
The management company owns the reversionary interests in the property and also the common property.
The role of the management company includes day to day management of the common property in addition to
taking charge of statutory obligations for which the company may be liable such as payment of land rents and land
rates once all leases have been registered and tenants have taken possession of the units.
The minimum number of years for enjoyment of the un- expired interest preferred for subleases is at least fifty
years.
 7.0 Ownership of flats and
apartments under the Sectional

Properties Act 1987

The Sectional Properties Act was enacted in 1987. The commencement date of the statute was 1st
April 1990.
The pre-amble to the Act describes the Act as one providing for the division of buildings into units
to be owned by individual proprietors and common property to be owned by proprietors of the
units as tenants in common and to provide for the use and management of the units and common
property and for connected purposes.
The Sectional Properties Act 1987 was essentially enacted to facilitate the sale and purchase of
flats and apartments by way of sectional titles.
The Sectional properties Act has been operationalized and over 7000 titles issued for Nyayo
Estate in Nairobi.
Key characteristic of the Act include separate ownership of flats and apartments, co- ownership of
common property by all flat/ apartment owners.
The substantive law pursuant which title is issued is RLA.
Where the land the subject of the proposed development is owned under RTA, GLA or other
systems of registration, there must first be a conversion of title to RLA.

Sections 4 and 5 of the Act are key as they relate to the registration of sectional plans in respect
of the units. The Sectional plan is the architectural drawing outlining the units and the proportional
common area to which each unit related to.
On the registration of the sectional plan the Registrar shall close the Register of the parcel
described in it and shall open a separate register for each unit described in the plan.
The Registrar of Lands on the payment of the prescribed fees issues a certificate of sectional title
in respect of each unit.
 Sectional Titles
A Sectional Title may devolve or be transferred, leased or charged or otherwise dealt with in the same manner as
any other land registered under the RLA.
The SPA at Section 17 provides for the automatic constitution of a Corporation once a Sectional Plan is registered
Under Section 4 of the Act.
The provisions of the Companies Act Cap 486 do not apply to the Corporation.
The Corporation is designated a name, e.g. The owners of Sectional Plan Number..
The Corporation has perpetual Succession and a Common Seal.
The duties of the Corporation are described at Section 20 of the Act and these include carrying out any duties
imposed on it by the by-laws, insurance of the building, keeping building and common property in a good state of
repair, compliance with statutory obligations, management of service charge etc.
Sale of residential Units under the SPA 1987 will be by way of purchase agreement. Section 46 of the Act outlines
the documents that must be delivered to a potential purchaser by the developer among these the by- laws or
proposed by- laws of the corporation, any management agreement or proposed management agreement, any
recreational agreement or proposed recreational agreement, the lease of the parcel, or certificate of sectional title
for the unit, any charge that affects or proposed charge that will affect the title to the unit or proposed unit, the
sectional plan,etc.
Unlike in the sublease regime, the developer must deliver to the purchaser at least 10 days before the execution of
the purchase agreement a description, drawing or photograph showing the interior finishings of the building, any
recreational facilities to be used by persons residing in the units, the location of roadways, walkways, fences,
parking areas, landscaping, the exterior finishings of the buildings as it will exist when the developer has fulfilled
his obligations under the purchase agreement.
The purchaser must also be informed of the estimated amount of service charge and his/her unit factor
apportionment in respect of the unit.
Section 48 of the SPA 1987 provides that all payments by a purchaser to the developer must be held in trust.
CONCLUSION