Kenyan Property Law

8/13/2019 Kenyan Property Law

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9) Property Law

i) Nature and classification of propertyii) Ownership and possession

iii) Patents, copyrights and trademarks

NATURE OF PROPERTY

The term property has been used in a variety of senses !n the widest sense, it can be said to include all

the legal rights of a person of whatsoever description ie, the property of a man is all that is his in law !na narrow sense, property includes the proprietary rights of a person and not his personal rightsProprietary rights constitute his estate and other property while personal rights constitute his status or

personal condition !n another sense, property includes only those rights which are both proprietary and

real Property in the narrowest sense includes only the right of ownership in material things The termproperty can also be used in two different senses as distinguished below"

i #ale of $oods %ct talks of property in goods when it means the ownership of them !n contract of sale

of specific goods, the seller transfers the property &ownership) in goods to the buyer when the contract ismade, and it is immaterial whether the time of delivery or of payment, or both, in the future

Trling Vs Baxter

% haystack was burned down before the buyer took it away !t was held that the loss fell on the buyer and

he had to pay the price because the property was passed to him at the time of the contractii 'sually the word property means the things which are capable of being owned, although they need not

e(ist in tangible form

ence in this sense the term property includes"

a Things in Possession * such as pens, books, desks, chairs, watches etc These are also known as choses

in possessionb Things in action + These have no physical e(istence and include things such as debts, patents,

copyrights, trademarks, shares, negotiable instruments, etc They are called choses in action, which can be

enforced only by action and not by taking possession

Thus a thing or things capable of ownership need not necessarily be tangible, ie capable of beingtouched !t may be a right to fish in someones river or a right of way over someones land

CLASSIFICATION OF PROPERTY

-any legal systems divide property into movable and immovable, while .nglish law has preferred to

classify it into real and personal

/eal Property

/eal property means land, including building on land and trees and crops that grow on it, and the rightsover land This refers to immovable property including rights emanating from such property eg land

building etc

Personal property%ll other rights, for e(ample, the right of occupancy of a house or a piece of land for a certain number of

years, or right of ownership of a watch, or a claim to be paid a sum of money at a particular time, are

classed as personal property !t thus refers to any property other than real property and includes movableproperty eg furniture, books etc it is further subdivided into0

* 1hoses !n %ction"ie !ntangible things eg stocks and shares, patents, copyritghts, negotiable

instruments etc This is an intangible right which is incapable of physical possession eg copyrights, trademarks, goodwill of a business etc


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* 1hoses !n Possession ie Tangible eg tables and chairs etc This is a tangible thing which is capable of

physical possession This includes all moveable property in material form eg a car, a piece of meat etc!llustration" * !f you have a fleet of cars in your showroom, you have a chose in possession 2ut if the cars

were in course of shipment or in a shipping company3s warehouse and you held a document showing your

right to claim the cars, that right evidenced by the document would be a chose in action

The distinction between a real and personal property is of historical origin and is based on the different

kinds of remedies available to a dispossessed person. In early English common law actions fell into twoclasses: Real actions and ersonal actions for recovery of damages. !and was the only ob"ect of whichrestit#tion in specie $i.e. specific performance% co#ld be enforced& and so it follows that it was called Real

property. 'ny other property was classified as personal. property& incl#ding leases and persons who were

deprived of personal chattels co#ld not enforce their act#al recovery b#t had to accept damages.

ACQUISITION OF PROPERTY

There are many modes of ac4uiring property #almond refers to four modes ie&i) 2y possession0 property can be ac4uired by possession e who claims property as his own and also

possesses it may get title to its ownership by law

&ii)2y adverse possession0 this is the creation of alright over the lapse of time !f a person is in actual

possesses of land over a period of 56 years without interferance, he may be recogni7ed as the true owner&iii)2y agreement0 property can be ac4uired by an accepted proposal communicated between two or more

parties of a common intention

&iv)2y inheritance0 this is the passing of certain rights in property from one person after his death to theother by succession

&v) Prescription" % person who has been en8oying an interest over land in a period of 69 years obtains

ownership interest

OWNERSHIP AND POSSESSION

OWNERSHIP

The idea of ownership developed over a long period of time with growth of civili7ation when people

began thinking in terms of mine and thine .arlier on, there was no distinction between ownershipand possession, but with passage of time, this distinction became clearer %ll legal systems distinguish

between ownership and possession :eaton says that the term ownership is one which is easy tounderstand but difficult to define with e(actitude Ownership is a matter of law and it denotes the relation

between a person and the ob8ect forming the sub8ect matter of his ownership % person is the owner of

property if he has the ultimate right over its use and disposal Ownership has the following essentialelements"

a The owner has the right to possesses the thing which he owns

b The owner has the right to use or not to use the thing he ownsc The owner has the right to destroy, alienate or sell the thing

d Ownership is indeterminable in duration !t endures forever

e Ownership has a residuary characterf The owner has the right to e(haust the thing while using it if the nature of the thing is as such

The owner has right to keep out strangers owever, the owner may temporarily part with one or more of

his right eg to a lessee but note that when the lease ends the property automatically goes back to theowner This is called right of reversion ;hen the lease is in e(istence, the tenant can further lease

&alienate) has right to a third party This shows that although alienation is basic right of the owner, it

doesnt automatically denote &mean) ownership Thus two main components of ownership are"i Possession

ii /eversionary rights


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'ltimately, the state is the actual owner of all land in :enya since it would revert back to the state for lackof heirs Ownership may be ac4uired in any of the following ways"

a Originally" * where a person creates something new or ac4uires something that no one claims or has

been abandoned by its original owner Original ownership may also be ac4uired by long, continuous andundisputed possession of a thing as owner and also by accession ust like ownership, the concept of possession also developed gradually over the course of many

centuries 'nder the common law and the /oman law, possession denotes physical control over a thingThe legal importance of possession started to emerge when legal issues became identified with

possession ;hile ownership is a matter of law, possession is a matter of fact Possession refers to

physical detention coupled with the intention to hold the things detained as one3s own !t refers to having

custody of a thing coupled with the intention to e(ercise e(clusive control over it Possession is the primafacie evidence of ownership The first possessor of a thing which as yet belongs to no one, may get a good

title of right !t is often said, ?possession is nine points of law? !t means possession is best evidence of

ownership e(cept as against the true owner Therefore a person in possession of a thing does not have toprove that he is the owner

The person who disputes his ownership must establish his right over the thing by producing validevidence of ownership Possession is therefore a matter of policy, not a matter of fact The 4uestion is

who ought to have the legal incidence or benefit of possession !llustration0 Thus if % throws his old

suitcase into the street, it indicates that he has given up its possession and the finder of it could becomethe owner without paying for it % person, in possession of a car does not have to prove that he is the

owner of the car he is driving On the other hand a person who disputes his ownership must establish hisright over the car by producing valid evidence of ownership The meaning of possession will therefore

depend on the conte(t and the relevant policy consideration eg under property law, where a tenant entersinto possession then re4uirements for a valid lease may be waived through part performance without

necessarily having satisfied the legal re4uirements for a valid tenancy ence for the purposes of the

doctrine of part performance, possession is actual, physical control, with time the idea of possessionceased to be embedded only in physical control

;ith the growing need to protect private property the law found it imperative to ascribe actual control,physical control was defined as custody or detention only Possession can be converted into ownership

under the following circumstances"

a !f wrongful possession of land continues for twelve years, and of goods for si( yearsb The holder of a negotiable instrument, a factor, and a seller in market overt can give a better title thanthey themselves, provided the buyer takes them in good faith and for value

1haracteristics of possession"'nder common law and /oman law, possession included the following0*

i Possession was prima facie evidence of ownership

ii Possession was a basis of certain remedies eg the remedy of e8ectioniii !t was an important condition in ac4uiring ownership

iv Possession could confer a good title on another even though he had no title himself


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!n law Possession re4uires two ingredients"i 1orpus possidendi &physical possession)

ii %nimus possidendi domni &intention to e(clude others or intention to call as own)

INTELLECTUAL PROPERTY (Persoa! Property)

!ntellectual Property is a property that arises from the human intellect !t is a product of human creation !t

is the creation of the human intellectual process and is therefore the product of the human intellect ormind !ntellectual property protects applications of ideas and information that are of commercial valueThey are rights to stop others from doing certain things, to stop pirates, counterfeits, imitations, etc

The rationale for protection of intellectual property is to stimulate and promote further creativity

Ob8ects of !ntellectual Property

!ntellectual property can simply be understood to mean non*tangible products of human inventiveness and

intellectual endeavour !t includes information that has been captured or recorded, to the e(tent that it hasbeen given definite shape and some more or less permanent form by an author or editor or compiler in

writing, or in a computer or on a sound recording !t covers works of imaginations and inventiveness

!ntellectual property therefore covers Patent, 1opyrights, Trade marks and =esigns, Passing*off and

counterfeiting etc Patents and trade marks and perhaps trade secrets, are sometimes referred to as!ndustrial Property !ntellectual Property comprises the following types of protection"

!ndustrial Property /ights &Patents, Trademarks, !ndustrial designs, 'tility -odels, Topography ofintegrated circuits and $eographical !ndications)

1opyright &@iterary and artistic works)

Protection of New Aarieties of Plants

%dministration

!n :enya three government ministries administer intellectual property rights :enya !ndustrial Property

!nstitute &:!P!), a body corporate in the -inistry of Trade and !ndustry administers the !ndustrialProperty %ct 6995 of the laws of :enya covering Patents, Trade marks, #ervice marks, !ndustrial designs

and 'tility models 1opyright is administered by the 1opyright 2oard of :enya an office in the %ttorney$eneral 1hambers under the 1opyright %ct 6995 of :enya The Plant varieties %ct of :enya isadministered by the :enya Plant ealth !nspectorate #ervices :.P!#

!mportance!ntellectual property has long been recogni7ed and used by industriali7ed countries, and some developing

countries, as an important tool of technological and economic development -any developing countries

are becoming increasingly aware that it is in their best interests to establish national industrial property

systems, where they do not e(ist, and to strengthen and upgrade e(isting systems which, inherited fromtheir historical past, are no longer ade4uately responding to new needs and priorities

1ountries have laws to protect intellectual property for two main reasons One is to give statutorye(pression to the moral and economic rights of creator for their creations and the other is to promote, as a

deliberate act of government policy, creativity and to encourage fair*trading This contributes to

economic and social development

Protection

!ntellectual property is protected by national laws, which are uni4ue in each country #ome countries

including :enya have become signatories to multinational treaties and agreements, which provide some


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form of harmoni7ation in the protection of intellectual property :enya is a member of the following

Organisations, Protocols, treaties and agreements"

;orld !ntellectual Property Organi7ation ;!PO

%frican /egional !ntellectual Property Organisation +%/!PO

Trade -ark @aw Treaty* now #ingapore Treaty on the @aw of Trademarks since 6Bth -arch699C

Paris convention for protection of !ndustrial Property

-adrid 'nion &-adrid %greement D Protocol) on !nternational /egistration of -arks

;e are about to 8oin Nice %greement on classification of Trade and #ervice -arks

;e use Aienna 1lassification although not members of Aienna agreement &There is provision in

Trademarks %ct for both Nice and Aienna classifications)

Patent cooperation treaty P1T

2erne convention on 1opyright

Nairobi Treaty on the Protection of the Olympic #ymbol

'POA for New Plant varieties

Trade /elated %spects of !ntellectual Property /ights &T/!P#)

:enyas e(isting intellectual property legislations have been drafted in line with those provisions

/ights 1onferred

The owner of the intellectual property right has the right to preclude any person from e(ploiting the

protected property by any of the following actsE

making, importing, offering for sale, selling and using the property0 or

stocking such product for the purposes of offering it for sale, selling or using the property

!n return for the grant of a patent for e(ample, the inventor places the technological information

surrounding the invention in the public domain This is achieved by publishing a patent document %ny

invention, which is not protected in a given country, is considered as being in the public domain in thatcountry #uch invention could be used in that country for its own technology development without the

risk of infringement

The duration of a patent is usually limited to twenty years Once this period has e(pired, all third partiesmay use the information and thus e(ploit the invention

Prote"t#o Pro"e$%res

P%T.NT &!nventions)

%n e(clusive right to be the only maker or seller of an invention for a specific number of years % patentis granted by a national patent office or by a regional office that does the work for a number of countries,

such as the .uropean Patent Office &.PO) %t the !nstitute applications to grant patents are received from

four routes, namely" local

%/!PO

P1T &;orld intellectual Property Organi7ation*;!PO)

foreign * direct

% patent describes an invention for which the inventor claims the e(clusive right

!nvention is a new solution to technical problem &product, process and new use)

+ !t must be new


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+ ave an inventive step

+ 2e !ndustrially applicable

%pplication Procedure for a patent

%pplication &%pplication


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Terms of protection smaller I*59 years, less stringent re4uirements

!N='#T/!%@ =.#!$N

!ndustrial =esign is the ornamental or aesthetic aspect of a useful article of industry The aspect that gives

special appearance to a product of industry

%pplication Procedure for an !ndustrial =esign

o %pplication formo %pplication fees

o /epresentation of the design &photo, drawing etc)

o 1omparison with e(isting designs

o Publication &opposition period C9 days)

o /egistration

o Priority C months

1ar designs, furniture designs etc

T/%=. -%/:#% trade mark is a registered design or name used to identify a manufacturers goods Trade marks have

become more and more important in recent years :enya !ndustrial Property !nstitute, the official body

for registration of trade and service marks in :enya, is mandated by the Trademarks %ct 1ap H9C, &%slast amended by the Trade -arks &%mendment) %ct, 6996), of the @aws of :enya to give protection to

trade marks and service marks

% trade mark can take many forms The law states that a trade mark may be any symbol that Lis capable

of identifying a companys goods or services !t can be a word, a picture or a combination of both


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%pplication procedure for registering a Trade mark

o ournal to allow for any opposition, within a period of si(ty days from the date of

the >ournal

o !f there is nobody challenging the intention to register the advertised trade mark, the trade mark is

registered and the applicant is issued with a 1ertificate of /egistration

%n entry in the !nstitutes Trade marks /egister is valid for ten years from the date of the application

Three months before the validity lapses, the trade mark holder is notified in writing to this effect so thatan application for renewal can be made in good time for another set of ten*year period Trade mark

protection is indefinite as long as it is renewed

The Office can refuse to register certain trade marks, for e(ample in cases where these contain purely

descriptive elements &eg tasty 1heese for daily products or life insurance for life insurance) Or even

on moral grounds The following are factors to consider whether one is a registerable mark"

a !t must be a mark capable of being represented graphically"That is, it must be a device, brand, heading, label, ticket, name or an abbreviation of a name, signature,

word, letter or numeral shape of goods, packaging, or combination of colours or any combination thereof

which is capable of being graphically representedb be used as a trade or service mark" 'nless it is used to indicate a business connection between the

owner of the mark and his goods or services !t does not matter what sort of connection This can be

manufacturers, dealers, importers etcc -ark must be distinctive" The most important re4uirement for a registerable mark is that it must be

distinctive, in the sense of being suitable for distinguishing goods or services with which it owner has

some business connections from those or other concerns


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countries by a single application #uch application is submitted through :enya !ndustrial Property

!nstitute as a receiving office, for transmission to the !nternational 2ureau of the ;orld !ntellectualProperty Organi7ation in $eneva, #wit7erland

1OPK/!$T#/egistration of copyright is based on non*formality provision under the 2ern 1onvention of 5BBF for

protection of literary and artistic works 1opyright protection is borne by simply e(pressing the original

idea in a fi(ed form owever, many countries provide for a national system of optional registration anddeposit of works0 these systems facilitate, for e(ample, 4uestions involving disputes over ownership orcreation, financing transactions, sales, assignments and transfers of rights

The law relating to copyright !N :enya is the 1opyright %ct 1ap 5F9 This %ct makes a provision forcopyright in literacy, musical and artistic works, cinematograph films, sound recordings and broadcasts

#ection 6 of the %ct defines some important terms as follows" %rtistic work means any of the following"

a Painting, drawings, etchings, lithographs, woodcuts, engravings and prints,b -aps, plans and diagrams,

c ;orks of sculpture,

d ;orks of architecture in the form of building or models,

e Photographs not comprised in a cinematograph film and0f ;orks of artistic craftsmanship etc

Broadcastmeans a sound or television broadcast of any material

(inematograph filmmeans the first fi(ation on a film or any other medium of a se4uence of visual imagesor electronic impulses capable of being seen as a moving picture and of being the sub8ect of reproduction,

and includes the recording of a sound track associated with the cinematograph films

!iterary workmeans, irrespective of literary 4uality, any of the following, art works similar thereto" *a Novel, stories and poetical works,

b Plays, stage directions, films scenarios and broadcasting scripts,

c Te(tbooks, treaties, histories, biographies, essays and articles, but does not include law or8udicial decision

d .ncyclopaedias and dictionaries,e @etters, addresses and sermons,

)#sical worksmeans any musical work irrespective of musical 4uality, and includes works composed formusical accompaniment

(opymeans a reproduction written form, in the form of a recording or cinematograph film, or in any

other material form, but an ob8ect shall not be taken to be a copy of an architectural work unless the ob8ectis a building or model 1opyright means copyright under this %ct

Infringing copymeans a copy whose manufacture constitutes an infringement of copyright, or in the case

of a copy which is imported, would have constituted an infringement of copyright had the copy beenmanufactured in :enya #ection F of the %ct provides that the following works shall be eligible for

copyright"

a @iterary works,b -usical works,c %rtistic works,

d 1inematograph films,

e #ound recordings,f 2roadcast,

g Programme +carrying signals

'nder section G&6) of the %ct the term of a copyright shall be calculated according t the following table

Type o& Wor' Date o& ep#rat#o o& "opyr#*t


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5 @iterary, musical or artistic work other thanphotographs

* 6H years after the end of the year in which the authordies

6 1inematograph films and photographs * 6H years after the end of the year in which the workwas first made lawfully accessible to the public

F #ound recordings * 69 years after the end of the year in which the

recording was made

G 2roadcasts * 69 years after the end of the year in which the

broadcast took placeH Programme carrying signals * 69 years after the end of the year in which the signals

were emitted to a satellite

Documents

Kenyan Property Law