FGE 452: CADASTRAL SURVEYING

1. INTRODUCTION

1.1 OBJECTIVE:

That branch of surveying directly related with provision of title to land. It is an aspect of
land administration and its primary objective is to determine for each parcel of land its
location, extent of boundaries, surface area and separate identity. In its wider perception
cadastral surveying includes valuation and assessment of land and property.

For purposes of this course, focus will be on survey for unambiguous identification of
parcels so as to facilitate provision of title to land. In Kenya cadastral surveys are of two
main types: -
1. Fixed boundary surveys.
2. General boundary surveys.

The government regulates the manner in which these surveys are done and the people
who may execute the surveys.

1.2 BACKGROUND

As people have tended to settle down (as opposed to leading a nomadic life), various
concepts of "defendable territory" have developed in as far as individuals or groups of
people are concerned. This has led to people marking out areas for their "use to the
exclusion of others". Cadastral surveying dates back to around 3000 BC in the Egyptian
and Babylonian civilizations. In Egypt, Pharaohs would give out portions of land for
cultivation by their subjects and collect revenue from them. Records of land transactions
in Mesopotamia exist for the same period.

1.3 LAND

Land has been given many definitions, depending on the notions of those concerned. Land
has been perceived on various occasions as space, nature, situation, property, factor of
production, unit of consumption, capital territory, etc.
Some definitions of land include: -
1. Any portion of the Earth's surface over which ownership rights may be exercised.
2. Stretching up to the sky and down to the centre of the Earth.
3. Surface of the Earth including sub adjacent and super adjacent things such as
minerals, trees, buildings etc.

1.4 LAND TENURE

The term tenure is derived from the Latin word "tenere" which means, "to hold". Land
tenure describes the manner in which land is held and inevitably involves 'man to man'
and 'man to land ' relationships. In a modern setting, land tenure involves rights,

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responsibilities and restraints that individuals or groups of individuals have with respect
to land and its management.
A land tenure system is an institutional arrangement governing the local relationships
amongst individuals and groups with regard to the allocation of land, the use of the land
and the enjoyment of the produce of the land. Land tenure issues in all societies include:
-
1. The relationship between man and the State.
2. The use and responsibilities attached.
3. Transaction mechanisms.

Effect of law on land tenure: -

1. Distribution of rights and responsibilities.
2. Security of tenure.
3. Transfer mechanisms.

1.5 LAW

That body of rules and regulations recognized as binding by individuals and nations. A
system or a body of rules of conduct recognized by custom or originating from a
governing body, considered as binding upon members of the community, nation or
society.

Law may be divided into two main categories: -

1. Written: Formally enacted by Parliament.
2. Unwritten: Unenacted though it may have been reduced into writing (e.g. Legal
reports).

State:
A territory unit, which signifies a group of people living within a defined territory, ruled
by one supreme government and subject to a greater or less extent to a uniform system
of law.

Sources of law
1. Legislation.
2. Judicial precedents. (e.g. Common Law - Old Court of Common Law. Laws of Equity -
Old Court of Chancery).
3. Customs.
4. Books of Authority.
5. Customary law.

1.6 PROPERTY RIGHTS

Property is a set of enforceable rights between individuals to the use and benefit of
something. Legal arrangements for allocating resources and resolving issues of
entitlement have the following components: -
1. An owner together with others who can be excluded.
2. Objects capable of being held in private or public possession.
3. Sovereign rights to sanction and protect rights.

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1.7 ESTATES AT COMMON LAW.

This is a group of rights or interests held by an individual in a parcel of land. An owner of

land enjoys a bundle of rights over his own land. Some of the rights are called natural
rights while others are called acquired rights.

1.7.1 Natural rights.

These are not created by parties during the acquisition of the land. They are attached to
the land by virtue of ownership. Subject to certain restrictions, a fee simple owner is
'prima facie' (at the face of it) entitled to everything on or over his land. There is a legal
maxim that “The owner of the soil owns everything up to the sky down to the centre of
the Earth".

The chief rights are: -

1. The right of Air and Light.
2. The right of support.
3. Riparian rights.
4. Qualified right in wild animals.
5. Treasure-trove.

1. Statute or legislation may vest in the State all minerals, which may be found on the
Earth.
2. Navigation rights over the land.
3. Rights of others over the land (e.g. Right of way - one may not obstruct others using
an established path through your land).
1.7.2 Acquired rights
These include rights that are exercised by a landowner over the adjacent land of
another. These include Easements, Profits A'prendre and Licence.

1.7.3 Types of Estates

The two types of Estates at common law are Freehold and Leasehold.

Types of leaseholds
1. Fixed term.
2. Periodic (from year to year).
3. At will.
4. At sufferance.

Types of Freeholds
1. Fee simple.
2. Entailed.
3. Life interests.

1.8 OWNERSHIP

This is a concept, which denotes certain rights, the principal components of which are: -
1. Right of sale.
2. Right of possession.

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 3. Right of 'usufructus'--use
4. Right to lease, charge and to give easements.

With regard to land, the term proprietor is used instead of owner. Absolute ownership
is vested in the state and even a freehold estate is first of the state's land. If one dies
without any successors, the property will revert to the state ''bona vacantia'' (not
passed under a will or intestacy).
Co-ownership: This is the institution where two or more persons are entitled to the
simultaneous enjoyment of the land. There are two principal types of ownership: -
1. Joint tenancy.
2. Tenancy in common.

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 2. CADASTRE

The term cadastre is probably derived from the Greek word ''Katastichon'' meaning
notebook or business record. The term gradually evolved to ''captastrum'' (in Latin),
which was the term for the register of territorial taxation units into which the Roman
provinces were divided.
Cadastre is often defined as a record of interests in land, encompassing both the extent
and nature of these interests. It is a methodical and up-to-date record of parcels in a
jurisdiction. It is a public register, usually recording the quality, value and ownership of
land parcels in a country.

2.1 SOME EXAMPLES OF EARLY CADASTRAL ARRANGEMENTS

Early agricultural settlements along the Tigris, Euphrates and the Nile rivers: -
i. In Egypt revenues for Pharaohs and the priesthood were met principally from
taxes on the land. Land was measured and the boundaries demarcated. Clay
tablets from the ruins of Sumerian villages provide records of charges against the
land, maps of towns, tracts of land, area computations and court trials adjudicating
ownership and boundary disputes.
ii. Greeks and Romans established elaborate land records systems primarily in
support of land taxation policies.
iii. The Domesday book Norman England. This was primarily a collection of facts
about land and its improvements made for fiscal purposes. This was done between
1085 and 1086 AD.
iv. Survey for revenue purposes in Tamil Nadu in India under Raja Raja the Great
around 1000 AD.
v. Measurement and assessment of French Lands under Louis VI in 1115 AD.
vi. Milanese cadastre mapping program of between 1720 and 1723 AD that had
Estate maps at a scale of 1:2000.
vii. Complete cadastral survey of France under Napoleon.

2.2 INTEREST

An interest is defined as a uniquely recognized relationship in regard to the use and

enjoyment of land. For a record of interests to be recognized as a cadastre, it should have
the following attributes: -
1. Be a public record.
2. Encompass without exception, all legally recognized interests in the community.
3. Be based upon legally recognized and maintained parcels.
4. Constantly maintain an up to date record of every parcel.

2.3 TYPES OF CADASTRES

Cadastral systems may be classified in a number of ways. These include: -

1. Surveying practices used to create cadastral parcels (e.g. graphical, numeric, and
photogrammetric).
2. Specific information maintained in the cadastral records (e.g. Agricultural, drainage,
buildings).

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3. Complexity of the cadastral arrangements (e.g. Rudimentary, Advanced etc.)
4. The primary purpose for which the cadastre has been created (e.g. Fiscal, Juridical,
Multipurpose).
The most commonly used classification is according to the primary purpose for the
creation of the cadastre.

2.3.1 FISCAL CADASTRE:

This provides information for equitable and efficient valuation of real property.
Functions served by the fiscal cadastre: -
a) Information base for property taxation.
b) Support in financial allocation programmes.
c) Monitoring and support for land market.
d) Aid to land use development control.
e) Provision of land information.

2.3.2 JURIDICAL CADASTRE

Provision of information on legally recognized interests in a parcel of land and to provide
a means of legal transfer of these interests. It provides the main support to land
registration. It consists of two parts: -
i) Written record or register containing information about each parcel. (e.g.
name of the owner and the rights which appertain to the land).
ii) Detailed description of the parcel, which may be in the form of maps or survey
measurements. This description is normally cross-referenced to the written
record.

2.3.3 MULTIPURPOSE CADASTRE

Is a large scale, community-oriented land information system designed to serve both
public and private organizations and individual citizens. Its distinguishing characteristics
are: -
1. Employs the cadastral parcel as the fundamental unit of spatial organization.
2. Relates a series of land records (e.g. land tenure, land value and land use) to this
parcel.
3. Is, wherever possible, complete in terms of spatial cover.
4. Provides a ready and efficient means of access to the data.

The multipurpose cadastre differs from other forms of cadastre in its breadth. It goes
beyond the fiscal and juridical records to include other information such as that relating
to public land management, infrastructure, physical and other related interests.
It differs from other land information systems in that it is parcel based.

The main components:

The main components of a multipurpose cadastre are: -
1. An accurate spatial reference framework.
2. A series of up to date large scale maps.
3. Cadastral boundary overlays tied to the legal records of property boundaries.
4. Linkage to land records associated with many record offices and users.

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Benefits:
Four main benefits, which are usually cited in favour of the multipurpose cadastre, are: -
1. Technical: Large scale, high resolution, quality-defined information and a rigorous
framework on which it is built.
2. Institutional: It is a continuous part of the general administration and is designed
to look at various land tenure and management issues.
3. Economic: Due to wider user community and multiple uses, there is distribution of
front-end costs.
4. Social: Provides a tool for individual decision-making through enhanced provision
of information on matters affecting individual rights and other matters of interest.

2.4 ELEMENTS OF A CADASTRAL SYSTEM

The main elements of a cadastral system are the cadastral parcel, the cadastral record
and the parcel code.

The cadastral parcel

This is an unambiguously defined unit of land within which tenure interests are defined.
It must envelop a continuous area of land and a continuous set of interests in the land.

The cadastral record

This is a source of graphical and/or alphanumeric information on the delineation of the
parcel and the nature of the tenure interests related to each parcel. The non-graphical
record may be in the form of description of boundaries and interests related to each
parcel. The graphical record may be in the form of line maps, photos, orthophotos or
digital maps.
The graphical record is usually at the micro level or the macro level. At the micro level it
contains detailed survey plans and supporting documents showing all evidence required
to define legally delineated individual parcel boundaries. At the macro level are various
series of cadastral maps showing the approximate size, shape, and location of the parcels
within a cadastral jurisdiction

The parcel code

The parcel code connects the parcel to related records. It is also referred to as the parcel
identifier and may be a means of referring to a particular parcel without having to use its
full legal description.

2.5 CADASTRAL SURVEY SYSTEM

A cadastral survey system is a set of connected parts that relate to the collection,
processing and presentation of land information. The traditional role of a cadastral
survey system has been that of the initial creation of the cadastral parcel and subsequent
changes to the bounds of the parcel, including reestablishment of the missing boundaries.
This role also involves compilation of maps and related land records.
With the development of multipurpose cadastres and a new perception of expanded
survey profession, a new role of public management of land information is emerging.

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2.5.1 INTEGRAL OPERATIONS OF THE CADASTRAL SURVEY SYSTEM
1. Initial gathering of information necessary for the delineation of the cadastral parcel.
2. Analysis of the information that has been gathered for the delineation of the
cadastral parcel.
3. Actual establishment of the bounds of the parcel on the ground.
4. Registration of the boundary information.
5. Storage of the boundary information.
6. Dissemination of the information in the system.

Authorized private surveyors may carry out the first three (3) functions (i.e. (1) to (3))
while last three (3) functions (i.e. (4) to (6)) are generally carried out by the State, which
is generally responsible for boundary changes.

2.5.2 COMPONENTS OF A CADASTRAL SURVEY SYSTEM

The main components of the cadastral survey system are adjudication, demarcation,
survey and preparation of the cadastral record.

Adjudication
This is the ascertainment and confirmation of existing rights in land, including ownership
and extent. Inquiry may be made in the field or courts may be consulted or a system
involving both field staff and courts may be used. The process may sometimes involve
substitution of rights under customary law with equivalent rights under statutory law.

Demarcation
This is the actual establishment of the bounds of the parcel on the ground by
monumentation and marking on the ground. This may involve of various appropriate
markers such as fences, Iron pins, pegs and concrete markers. Natural features may also
be adopted as boundaries.

Survey
This is the acquisition of information about parcels by measurement for the purposes of
mapping their extent.

Preparation of the cadastral record

This is the stage for presentation of survey in a form that is intelligible to the user. The
record may be in graphical and/or alphanumeric form.

2.5.3 REGULATION OF A CADASTRAL SURVEY SYSTEM

Regulatory functions of a cadastral survey system are usually defined in a surveys and/or
boundaries statute. The statute should define: -
1. The reference network to which all the information must be referred.
2. Type and weighting of the information which must be provided in the evidence of
the creation or mutation of a boundary.
3. Standards of practice which must be met in proving the information.
4. Public agencies having vested authority to examine proposed boundary creations
and mutations.
5. Rights of appeal against decisions.

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2.5.4 REQUIREMENTS FOR MAINTENANCE OF A RELIABLE
CADASTRAL SYSTEM

1. Mandatory filing of field notes (original or certified copies) and of surveyor's plans
duly certified by a surveyor responsible for survey.
2. Necessary cross-referencing between the plan and related records which should be
available to surveyors and members of the public.
3. Minimum standards for documents connected with survey and relocation. This is
useful for relocation and verification of surveys at later dates.
4. Survey plans should indicate: -
a) Mathematical relationship between control and boundary monuments.
b) Distances angles and bearings or azimuths between corners.
c) Official parcel identifiers.
d) Abutting properties.
5. No alteration of previously determined and accepted data (if the data is within
recommended tolerance.)
6. Provision for reconciliation of existing boundaries or creation of new boundaries in
the field. Administrative of procedures to resolve any conflicts with deeds or plans of
adjacent lots should exist.

2.5.5. TYPES OF LEGAL SURVEYS:

Legal surveys entail gathering of evidence and preparation of a plan necessary for the
legal delineation of the cadastral parcel and the physical demarcation of the parcel on the
ground. Four types of legal surveys may be distinguished as original surveys, subdivision
surveys, assembly surveys and retracement surveys.

Original surveys
These involve alienation of land from the public domain or recognition of existing
boundaries in previously settled areas. Examples of these in Kenya include new
allocations from the government by the Commissioner of Lands or allocation of plots by
the Settlement Fund Trustees. Confirmation or recognition of existing rights is mainly
carried out in Trust Lands where conversion from customary to legal tenure is taking
place. Original surveys may be implemented in either a sporadic (unsystematic) or
systematic manner.

Subdivision surveys.
These create new cadastral parcels and new boundaries within the bounds of the original
cadastral parcel.

Assembly surveys
These surveys combine a number of existing cadastral parcels and extinguish a number
of interior cadastral boundaries. They are mainly carried out to remedy subdivision of
land into undersized plots and excessive dispersal of parcels. They could take the form of
Consolidation, Reform/Readjustment or Land Reform.

Retracement surveys
These reconstruct missing boundaries of previously demarcated parcels, based upon
evidence gathered and evaluated for the boundaries.

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Boundary mutations
These may be effected through:
a) Legislative authority (e.g. Land acquisition / expropriation, etc.)
b) Presumption of law (e.g. riparian and possessory interests)
c) Agreement by concerned parties (e.g. when owners of abutting properties agree on
the position of a particular boundary and possessory rights that have accrued
therefrom.

2.6 SURVEY EXAMINATION.

This is usually carried out in various jurisdictions to maintain the integrity of the cadastre
and to ensure that uniform standards are maintained, even though methods, standards
and specifications may be changing. On completion of a legal survey, a land surveyor
submits a plan of survey with supporting documentation to a cadastral entry office for
examination. This marks the point of entry into the cadastral system and registration
process. This office could also serve as a coordinating facility for a variety of public
agencies, which have a statutory interest in legal surveys.

The following tasks are normally carried out: -

Preliminary screening to ensure that documentation is in the prescribed format.
a) Date of entry in the examination process is noted, to keep track of the duration of the
process. In some jurisdictions, there is a statutory requirement for a survey to be
examined, registered and returned to the Land Surveyor who executed it within a
prescribed period of time.

The task of survey examination is traditionally under a public administrator who may
have an official designation (e.g. Examiner of surveys in the Torrens system). The
examination officer ensures that: -
1. The existing cadastral boundaries are described in the survey.
2. Proposed changes to the boundaries are based on a survey, which meets the
necessary standards of practice.
3. The survey has been performed by a competent surveyor as defined by professional
legislation

Upon completion of the Examination, the Examiner may accept the survey and submit it
for registration or he may withhold the acceptance on the grounds that: -
a) The standard of practice has not been met.
or
b) A question of law has been raised by the evidence presented.

If the reason for withholding acceptance is failure to comply with the necessary standards
of practice, then an explanatory letter may be sent to the surveyor, with the reasons for
withholding the approval.
If a question of law has been raised by the evidence presented (e.g. delineation of a
possessory or natural boundary), then the survey may be referred to an Adjudication
Tribunal. In Torrens jurisdictions, adjudication is often the function of the Master of Titles
while in some of the other jurisdictions (e.g. Massachusetts); it may be the function of a
land court. Registration is held in abeyance until all external reviews are completed.

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 3. BOUNDARIES
A boundary is any separation (natural or artificial) which delimits the extent of a parcel
and which distinguishes it from all other parcels.

The main types of boundaries are: -

a) Fixed boundaries.
b) General boundaries

3.1 MONUMENTS

A monument may be defined as any object, natural or artificial, which is fixed

permanently on the ground, is referred to in a legal document, and provides evidence of
the boundaries of a parcel of land. A good monument should have the following qualities:
-
1. Permanence
2. Stability
3. Certainty of identity
4. Be immediately visible.

3.2 CREATION OF BOUNDARIES

The two main operations, which are involved in delimitation of boundaries, are: -
i) Delineation
ii) Demarcation

DELINEATION
This is the legal description of the bounds of the parcel.
It covers the following aspects: -
i) It provides the approximate geographical location.
ii) Distinguishes contiguous parcels.
iii) Describes the shape of the parcel.
iv) Describes the dimensions, including the area, of the parcel.

DEMARCATION
This gives the physical awareness of the bounds of the parcel by monumentation and
marking on the ground.

3.3 FIXED BOUNDARIES

Fixed boundaries are sometimes referred to as precise boundaries, and also specific
boundaries. The precise line is usually delineated and demarcated by a survey. A surveyor
can, from survey measurements, accurately replace any corner monuments that might
get lost. The fixed boundary concept is that the position of the boundary cannot be
altered, except by some document of transfer. Thus, even if there was a revision in co-
ordinates, the boundaries at the time of alienation remain in their positions unless there
is a legal boundary mutation.

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Under the concept of fixed boundaries, the actual boundary is the imaginary line between
points. In most jurisdictions, provision is made for adoption of curvilinear or natural
boundaries where appropriate. In some others, (e.g. Peninsular Malaysia), curvilinear
boundaries are discouraged, and wherever possible, are replaced by straight-line
boundaries between fixed points.

3.4 GENERAL BOUNDARIES

Under this system, the precise line of boundary between parcels is left undefined - it could
be the side of a hedge or a fence, or down the middle. This system relies heavily on
demarcation of boundaries in a clear manner using physical features such as fences,
hedges, ditches, etc.

General boundaries are generally less demanding on standards of survey and tend to be
used in areas with relatively lower land values than fixed boundaries.

(Ref. Simpson 8:'Two methods of parcel definition' pp.143-145.)

3.5 RESOLUTION OF BOUNDARY DISPUTES

The manner in which boundary disputes are resolved in different jurisdictions depends
on the type of boundaries used and methods used in the survey of these boundaries.

Monument referencing systems

In jurisdictions where a monument referencing system is used (e.g. many parts of North
America), the location of cadastral parcel boundaries relies heavily on physical
monuments on the ground such as witness posts, witness trees, lines of vegetation, party
walls, lines of occupation, as well as various forms of boundary agreements. The doctrine
of original monumentation has the following hierarchy of boundaries: -
1. Natural boundaries
2. Original physical monumentation and physical posting
3. Fences and other evidence of possession
4. Measurements
The English general system is a monument referencing system, in which boundaries are
delineated and demarcated by permanent physical features.

Mathematical referencing systems

In jurisdictions where a mathematical referencing system is used, co-ordinate values on
a registered plan of survey, surveyor's field notes, specified contour lines and tidal
information are used to define boundaries and in subsequent relocation.

A mathematical referencing system provides for referencing of point information to a

Cartesian co-ordinate framework and a means of employment of advanced survey
procedures based on co-ordinate geometry. It reduces time; cost and uncertainty of a
retracement survey by eliminating the need to search for many 'lost monuments' that
usually indicate the general trend of a boundary. Corner monuments in a mathematically
referenced survey can be replaced, if missing, within required tolerances.
(Ref. Dale Chapter IV: pp. 56-pp92. Boundary descriptions)

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 4. BOUNDARY DESCRIPTIONS

Descriptions of property boundaries are needed to enable the extent of various

properties to be given for legal and fiscal purposes. These descriptions may also be used
in the re-establishment of property boundaries in the case of disputes. Boundary disputes
may be of the following forms: -
1. Verbal descriptions
2. Metes and bounds descriptions
3. Rectangular systems
4. Co-ordinate systems
5. Graphical systems

4.1 VERBAL DESCRIPTIONS

Properties may be described in a form of words such that a land surveyor following the
description may mark out on the ground the precise area described. In many countries
where land parcels are described verbally, the writing of such descriptions is done by the
members of the legal profession based upon measurements provided by the land
surveyors. In Canada, the preparation of the descriptions is the responsibility of the
professional land surveyor.

Written descriptions should be concise, complete, clear, and unambiguous. Methods of

description are standardized as far as possible so that the repetition of language leads
through common usage to an acceptable interpretation of the words. On their own, these
descriptions are inadequate for most purposes except conveyances, and produce little
information of value for other applications.

4.2 DESCRIPTIONS BY METES AND BOUNDS

A bound or abuttal is anything referred to in the original description, which determines

the limits of a property on the ground. A property may be described by bounds without
any measurement. Where measurements are included in a description, and are in conflict
with description by bounds, the evidence of the bounds carries more weight. A mete is a
vector quantity expressed as a distance in a specific direction. A description may be by
metes only without mention of the bounds. Words rather than figures are used in writing
of numbers. In descriptions, which use words and numerals for numbers, words carry
more weight than numerals. Descriptions by metes and bounds contain reference to
measurement of distance, direction and abuttals. The direction may be expressed as an
angle or a bearing. If bearings are used, it should be clear whether they are referred to as
the True, Magnetic or Grid North. Major weaknesses of descriptions by metes and bounds
are that: -

1. Unless the surveys are connected to control, it is not possible to locate all surveys on
a general plan to compile an index map for all the parcels. An expensive exercise
would have to be undertaken to facilitate this.
2. In a number of descriptions, the detailed description of the perimeter is given, but
there is no clear indication of where the description begins and ends.

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4.3 RECTANGULAR SYSTEMS

This system is practised in various forms in Canada and the United States of America. In
Canada, it is known as the Dominion Lands Township System.
Land was divided into townships, which were approximately square, with sides six miles
in length, oriented due North-South, and East-West. Each township was divided into 36
sections, each with sides 1 mile in length. Each section was further divided into
4 quarter-sections, which were basic units for settlement. Further sub-divisions of the
original allotments could be done, and descriptions would indicate which quarter and
quarter sections etc., were involved. For small sub-divisions the part of the plot involved
with some dimensions from a particular corner could be used adequately.

Although satisfactory for transfer purposes, these descriptions are dependent on the
suitability of the terrain for sub-division on the basis of lines running East-West and
North-South. In flat lands where the land is of equal capability, the system may be justified
(e.g. In Punjab, where it has been applied successfully for land reform). In many areas, it
is neither practical nor desirable.

4.4 CO-ORDINATE SYSTEMS

In co-ordinate systems, locations of boundary corners are described independent of

other boundary corners. The co-ordinates of a point may be described as geographicals
(latitude and longitude), or in terms of perpendicular distance from the point to a pair of
orthogonal axes. Many International and State boundaries are defined in terms of
geographical co-ordinates, which may be either 'astronomical', or 'geodetic'. Definition
by geographicals must include the type of co-ordinate considered, while the geodetic
values should indicate the mathematical shape of the Earth and the origin of the co-
ordinate system. Most of the co-ordinate systems in use for cadastral work are based on
simple plane rectangular co-ordinates on the assumption that the Earth is flat in the area
concerned or through transformation onto a specified map projection. In all the African
countries of the Commonwealth and in Malaysia and New Zealand many surveys are,
wherever possible, connected to the National triangulation network and generally
computed in terms of coordinates.

Advantages of co-ordinate systems

1. They permit use of simple survey methods to produce work of reasonable accuracy
and provide an easy system for detection of gross errors, since a rigorous survey
control network can be used for cross-checking between new measurements and to
old data.
2. Allow for cheaper and speedier restoration of boundary markers, both if the field
and in title searching and examination of old work.
3. Information collected can be used for other surveys and production of other plans.
4. Co-ordinates can be revised or changed to a new level of precision, if the need arises.

Disadvantages of co-ordinate systems:

1. There must be a control network in the area concerned, preferably a national
network, so that adjacent parcels can be on the same system.
2. Provision of a control network is expensive and time consuming.

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3. Change in co-ordinate values may cause some confusion, since the positions of parcels
may appear to have changed. Boundary positions and land rights in existing parcels
do not change and original monuments should always be replaced in their original
positions, if they are missing.

4.5 GRAPHICAL SYSTEMS

Boundaries may be described without numerical information by showing them

graphically on a plan. To meet the many requirements of a cadastral system, graphical
surveys need to be accurate. Some interim measures to produce plans for registration
and which are later revised to provide for more accurate plans exist in some countries
(e.g. Plans for qualified titles in Malaysia and PIDs and demarcation maps in Kenya).
In England, maps that are used for registration show topographical detail, while in rural
areas of Cyprus, positions of beacons of plots are surveyed by Plane table methods. In
Salvador, Thailand, some parts of Canada and some parts of Australia, orthophotography
has been used for preparation of cadastral index maps.

Strata plans
In recent years, a number of countries have introduced legislation (e.g. The Sectional
Properties Act, 1987, of Kenya) to permit an owner to possess a section of a building
which may not necessarily be at ground level. Each section of flats is identified and
measurements are given both at floor levels and between floor levels. Verbal descriptions
may be used to indicate where walls are party features or belong to one or the other title.

4.6 PARCEL IDENTIFIERS

Various methods for describing the limits of each parcel must include an element, which
uniquely refers to the parcel as a whole. This parcel indicator, referred to as the parcel
code, or PID (parcel identifier) or UPRN (Unique parcel reference number) allows for
indexing and cross-referencing within registers and any other filing systems. The parcel
reference number should ideally allow for access to all the details of the parcel, including
its attributes and spatial description.

Design criteria for a parcel identifier: (See Dale and McLaughlin pp. 40)
1. Easy to understand, making mistakes and confusion unlikely.
2. Easy to remember so that owners can recall their references.
3. Easy to use by general public and administrators.
4. Easy to process in computers.
5. Permanent (i.e. will not change with sale of property).
6. Capable of being updated (e.g. for subdivisions and consolidations).
7. Unique (i.e. no two parcels of land have the same reference number).
8. Accurate and unlikely to be transcribed in error.
9. Flexible for a variety of uses (from registration of title to all forms of land
administration).
10. Economic to introduce and maintain.

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Examples of parcel referencing systems in use
A number of alternative referencing systems are in existence today. These include: -
1. Grantor/Grantee index. This is referencing under the vendor and purchaser.
2. Title number. Usually sequential
3. Volume and Folio. Common in Torrens systems and Germany.
4. Subdivision name and plot number.
5. Block and plot number.
6. Post office address.
7. Street index and parcel address.
8. Grid co-ordinate or geocode. May be based on longitude and latitude, or a grid system
based on a particular map projection. Grid system more popular and
convenient.

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 5. LAND REGISTRATION
5.1 INTRODUCTION

Generally, legal rights in land and reciprocal obligations may be classified into four
areas: -
1. Right of control, either of a positive or a negative nature, over the use of the land.
2. Usufructuary right of direct use of the land.
3. Right of transfer.
4. Indirect right to economic gain from the land.
5. Various residual rights (e.g. reversionary rights to acquire use of land at a future
date).

Each of these may be defined in terms of four attributes: -

a. Legal criteria to which the right is conditioned.
b. Population associated with a certain right.
c. Effective time dimension of the right.
d. Spatial dimensions of the right.

a, b, and c are interest attributes, while d is a boundary attribute

In the land tenure context, a land registration system may be defined as a set of facilities
and arrangements whereby those relationships that are legally defined may be entered
into some form of a public register.
A land registration system provides the State with: -

1. A facility for initially delegating specific interests in parcels of land and creation of
records.
2. Subsequent monitoring and regulation of transactions.
3. Resolving problems of entitlement as they relate to property in land.
4. Information resource for all legally defined changes in the tenure framework.

5.2 FEATURES WHICH SHOULD BE PRESENT IN A SYSTEM OF REGISTRATION OF

TITLE

The following features should be combined in a system of registration of title: -

1. Security
2. Simplicity
3. Accuracy
4. Expedition
5. Cheapness
6. Suitability to circumstances
7. Completeness of record

5.3 BENEFITS OF A LAND REGISTRATION SYSTEM

Land registration cannot operate efficiently without some form of cadastre. The
information system that supports land registration is known as the juridical cadastre.

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An efficient cadastral system combined with registration of title has the following
benefits:
1. Certainty of ownership
2. Security of tenure
3. Reduction of land disputes
4. Improved conveyancing
5. Stimulation of the land market
6. Security of credit
7. Monitoring of the land market
8. Facilitating land reform
9. Management of the state lands
10. Support for land taxation
11. Improvements in physical planning
12. Recording land resource information

5.4 CLASSIFICATION OF LAND REGISTRATION

Public land registration systems are classified as either positive or negative, or as active
or passive.

5.4.1 POSITIVE AND NEGATIVE SYSTEMS

Negative systems: These simply record all the transactions that involve the parcel. This
is a continuous record of rights held and any changes that may occur. The record
contained in these systems does not confer title but can only act as a witness in the case
of disputes.
Positive systems: These establish title to the parcel, and its rights, which is guaranteed
by the State.
In summary therefore, one may say that negative systems contain assurances, while
positive systems contain a register of interests.

5.4.2 RACE AND NOTICE STATUTES 1

An incentive is usually required to ensure that transfers are actually recorded. In deeds
systems this is usually that recorded deeds usually get priority over unrecorded deeds.
Where “double sales” have occurred, the question of priority is important, especially if
one of the purchasers knew that it concerned a “double sale”. In the USA, each State has
its own recording statute. There are three main classes of recording statutes: race, notice
and race-notice statutes.
Race statutes: Priority depends on the order in which instruments are registered. The
"winner" of the race to the registry gains priority over anybody else, even if he knew of a
prior unregistered transfer. These statutes allow for complete reliance on recorded title.
Notice statutes: A bona fide purchaser for value, without notice (actual or constructive)
of other competing claims is safe. This enables the grantee to safeguard himself by
providing that registration constitutes general notice, but registration must be effected
before a later purchase occurs and not merely before it is registered. A subsequent
purchaser can rely on the register without having to record his own title document
because he will always win against a prior purchaser who did not record.
1 From "Systems of Land Registration: Aspects and Effects" by Jaap Zevenbergen

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Race-notice statutes: A subsequent purchaser wins against a prior purchaser when the
subsequent purchaser is without notice (actual or constructive) of the earlier claim and
registers before a prior purchaser does.

5.5 FAMILIES OF LAND REGISTRATION SYSTEMS

The main registration systems are either deeds or title systems. A deed does not prove
title, but merely shows that a particular transaction has taken place.

5.5.1 PRIVATE CONVEYANCING

This is also referred to as private investigation of title. It is probably the oldest and most
primitive publicly sanctioned registration process. It involves exchange of property
between parties after signing a private deed. Rights are transferred by signing, sealing
and delivery of documents between private individuals with no direct public notice,
record or supervision. It involves three parties, namely: -
1. The owner (vendor).
2. The purchaser (vendee).
3. An intermediary (solicitor).

Ownership is proven by documents held by the vendor and the abstract (history of the
title is prepared by the intermediary. Survey is not required before a deed can be issued.
The role played by professional intermediaries such as that of conveyancers in American
registration procedures has its roots in the private conveyancing concept. This system
has in the past been used in some parts of England, Ireland, and parts of South America.

5.5.2 RUDIMENTARY DEED REGISTRATION SYSTEM

This is the simplest form of public registration and provides for the recording of
assurances or the legal evidence of the transfer of the title to land in a public register.
Public registration is not compulsory and many rights (e.g. possessory rights) are not
registered as a rule.

This system has three basic elements: -

i) Logging of the time of entry of an instrument of transfer.
ii) Indexing of the instrument
iii) Formal storage of the instrument itself or copy of it.

Generally, there are no comprehensive boundary surveys (metes and bounds

descriptions are sometimes used), and indexing is usually by proprietor rather than by
parcel. There is no formal examination of assurances. Used in some parts of Canada
(Atlantic), England, and U.S.A.

5.3.3. IMPROVED DEED REGISTRATION SYSTEMS

These are negative systems inasmuch as they provide only for the recording of
assurances. They offer certain improvements to the basic system. These include: -
1. Mandatory registration, although there are a few exceptions.
2. Format and legal significance indexes.
3. Format and method of storing assurances.
4. Some form of examination of assurances.

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Though the requirements for accurate survey vary with jurisdictions, some advanced
deed systems have requirements for registration only after satisfactory survey and
monumentation. In a number of jurisdictions, surveys are examined by a government
organization (e.g. Surveyor-General or a Director of Surveys).
The system is used in some parts of Canada, Scotland, South Africa, China (Hong Kong)
etc.

5.3.4 TORRENS LAND TITLES REGISTRATION SYSTEMS

This is a positive registration system, which provides for compulsory registration of title
to parcels of land. It was introduced to Australia by Sir Robert Torrens in 1857 and is
founded on three (3) basic principles: -

1. The Mirror principle

This principle states that the register reflects the state of ownership accurately and
completely. With certain overriding exceptions (such exceptions seemingly unavoidable),
the title to a parcel of land may be considered free from all adverse rights and obligations
unless they are specifically mentioned in the register.

2. The Curtain principle

This principle states that the register is the sole source of information for the proposing
purchasers and there is no need to search elsewhere. It is not necessary to review all of
the instruments pertaining to the land, but only the current record.

3. The Insurance principle

The insurance principle concerns reimbursement for anyone who suffers loss due to
failure of the register to reflect the true status of the land. The State provides the
compensation. This is often called a guarantee of title.

Two attributes of the Torrens system are a parcel index (tract) and the fixed boundaries
concept. This system is used in parts of U.S.A., Canada, Australia, New Zealand and a
number of Commonwealth countries.

5.3. ENGLISH LAND TITLES REGISTRATION SYSTEM

This is a positive system within which the public register is at all times the final authority
on current interests in land. The State accepts the responsibility for the validity of the
transactions. This system also relies on physical monumentation of boundaries, which
are recognized by adjacent landowners.

This title registration system was started around the same time as the Torrens system
but under different economic, geographical and social conditions. The system shares
many attributes with the Torrens system but there are some important differences. For
example: The English system provides for and recognizes possessory rights within a
statute of Limitation, whereas Torrens does not. The Torrens register is public (anyone
may examine the register) whereas in the English system only the proprietors and
persons authorized by them, in writing, may inspect the register.

This system has found reasonable acceptance in a number of developing countries (such
as Belize, Malaysia, and Kenya etc).

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5.3.6 CONTINENTAL LAND TITLES REGISTRATION SYSTEMS (Germanic and
Continental European)
These are positive systems, which are often called "judicial or proprietary cadastres. They
may be distinguished from Torrens and the English systems by the nature of the interests
registered and the exceptions allowed. A major difference is the registration and
warranting of the bounds. In theory, at least, the registration of interests and registration
of the bounds are given almost equal weight. These systems also contain legal registers
of title known as "ground books". This system is practiced in Germany, Austria,
Switzerland, Scandinavia etc).

Please read the following: -

a. Land Law and Registration by S. R. Simpson pp. 143 - 146.
b. An article entitled "Basic considerations related to cadastral surveying of Cities." by
G. Konecny appearing in the Canadian Surveyor, Vol. XXIII, No. 1, pp. 399 - 408.

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6. PRESCRIPTION, ACCRETION, AND EROSION
6.1 DEFINITIONS

6.1.1 PRESCRIPTION
This is a legal rule, which enables rights to be gained through a lapse of time.

6.1.2 LIMITATION PERIOD

This period is the lapse of time after which the injured party can no longer claim rights
he has lost to another.

6.1.3 ADVERSE POSSESSION

This is an action of limitation barring the legal owner from asserting his rights to a parcel
of land, as a result of possession by another for a statutory period, under certain
conditions. A number of conditions which adverse possession must satisfy are: -
a. Actual and exclusive possession: (e.g. Enclosure such as fencing, permanent
improvements, cultivation or other resource activities etc.)
b. Open and notorious possession: Possession must in no way be secretive. The actual
owner must, or should have knowledge of possessory acts, were he to visit the area.
c. Continuous possession: The trespasser's possession must be continuous over the
statutory period. An interruption in possession will necessitate the restarting of the
statutory count at zero.
d. Hostile possession: The trespass must be against the owner's will. Hostile does not
imply ill will or violence. Any agreement amounting to permission will negate a claim
of adverse possession.

6.1.4 COLOUR OF TITLE

An action of limitation based upon entry with a written document, which has proved
defective.
Conditions of possession are similar to adverse possession, but there are two
differences: -
1. A document makes the occupier a 'bona fide' grantee. The occupier must have taken
possession under an instrument (e.g. a deed) which appears valid on its face, but is
subsequently proved defective.
2. When a claim is made under colour of title, the occupier will be deemed to be in
constructive possession of the whole parcel described by the instrument. If the true
owner is in possession of any other portion of the affected land, the claimant's
constructive possession to the whole area will generally be defeated and he will be
limited to a claim of adverse possession.

Most Torrens-type systems have abolished possessory claims or have no specific

provisions for them while the English type systems of title registration have generally
retained possessory interests. Most positive registration systems still make provisions
for encroachment and prescription.

6.1.5 ENCROACHMENTS
Encroachment is the intrusion, occupancy or use of lands of a contiguous owner. It must
be on the basis of a mistaken belief and not gross carelessness.

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6.1.6. PARTY WALL
This is a wall that serves as a boundary between two (2) parcels and which provides
support to improvements of adjoining owners. The boundary is presumed to be the
middle thread of the wall.
Two cases are applicable while dealing with party walls: -
i) Case A: A and B construct at different times -- A owns wall. There is the
presumption that the first builder constructed the wall on his property. The
second builder has an easement of support (general case) - Express or implied.
ii) Case B: A and B build simultaneously. There is usually an express agreement
between the owners. Owners can be tenants in common or “sole owners” of half
(1/2) of the wall and an easement of support.

6.2 CONVENTIONAL LINE

A conventional line is any boundary line defined by acts of words of contiguous owners
of land. The definition is broad enough to cover creation of boundaries by the subdivision
process, but the concept is primarily limited to a situation where the location of an
existing boundary is in doubt.
There are two processes by which conventional lines may be created: -
i) Agreement.
ii) Estoppel.

6.2.1 BY AGREEMENT
If the location of the existing true boundary is known, then any agreement altering that
boundary is in effect subdivision, and the boundary created is not a conventional line but
a new boundary, distinct from the original one. Where the original boundary is lost, or in
dispute, an agreement between the owners, either implicit or explicit, is looked upon by
Courts in some jurisdictions not as creation of a new boundary, but an expression by the
parties as to where they felt the old boundary was. The agreement leading to a
conventional line need not be in writing (although written evidence is preferable).
Conditions for creation of a conventional line by agreement are: -
a. The location of the original or true line is uncertain. It is not necessary that the
location is impossible to determine but simply that as between the owners there is
doubt.
b. Contiguous owners agree on a boundary line between them.
c. Some jurisdictions require some acts of possession or acquiescence, or the
demarcation of the line that has been agreed upon.

6.2.2 ESTOPPEL
An equity concept based upon the premise that if a person, by delay and standing by, has
entitled another to assume validity of a possessory title and to act upon such assumption
to his detriment, such person cannot set up against the title which he should have
asserted at an earlier date.
For ''A'' to be estopped that ''B'' violated his rights (e.g. A trespass action) the following
must be established: -
i) A must know his legal rights.
ii) B must be mistaken as to his legal rights.
iii) B must make an expenditure or do some act to his prejudice so as to be hurt by A
asserting his rights.

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iv) A must know of B's mistaken belief so as to make it inequitable for A to keep
silent while B proceeds.

6.3 WATER COURSES

A watercourse includes the bed, banks and the water of a stream flowing in a defined
channel (the flow needs not be continuous). These include rivers, lakes and coasts.

6.3.1 CLASSIFICATION OF WATER COURSES

a. Tidal or non-tidal: The problem with this classification is the delimitation of the
point where the river ceases to be tidal.
b. Navigable in law: Only tidal waters are navigable. There may however be a public
easement for navigation in some watercourses.
c. Navigable in fact: Criteria used in law (e.g. Commerce capability).

In general the following classification is used:

a. Non tidal or non-navigable: Upland property extends to ad medium filum aquae (to the
centre of the stream). Private fisheries belong to the owner of the bed. A grant or
legislation may defeat the presumption.
b. Tidal or navigable: Presumption that the "ordinary high water mark" is the upland
boundary. Public rights of fishing, navigation and access to the foreshore.

6.3.2 ACCRETION: This is the gradual and imperceptible deposit of alluvium on the
banks or shores of riparian/littoral lands.

6.3.3 RELICTION: This is the extension of a bank or shore due to gradual and
imperceptible recession of water to a lower level.

6.3.4 EROSION: The withdrawal of bank or shore due to gradual and imperceptible loss
of material.

6.3.5 SUBSIDENCE: Withdrawal of a bank due to gradual and imperceptible inundation

by the watercourse.

6.3.6 AVULSION: This is the sudden and perceptible alteration of the shoreline by the
action of water or a sudden and perceptible change of the bed or course of stream.

6.3.7 Comment: Generally if a property is bounded by a watercourse, its bank, a water

mark or a line, then the boundary is assumed to be ambulatory (changes in position)
except in cases of Avulsion.

6.3.8 SHARING OF LAND GAINED BY ACCRETION

There are three methods for sharing land gained by accretion: -
a. Extension of sidelines.
b. Perpendicular to the general trend of the shoreline.
c. Proportional shorelines (areas).

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7. LEGISLATION RELATED TO ALLOCATION AND REGISTRATION OF
TITLE SURVEYS FOR FIXED BOUNDARY SURVEYS IN KENYA

The following are the laws, which are currently concerned with registration of title to
land in Kenya - Note however that we are now in a transition period in which new
legislation concerning land management and land registration is in the process of being
implemented.

7.1 EAST AFRICA LAND REGULATIONS, 1897

These allowed the Imperial British East Africa Company (I.B.E.A.Co.) to give rights to land.
Private occupation was recognized under these regulations and certificates of occupancy,
which gave rights to occupy land for 21 years, were given. Four-foot concrete masonry
pillars were used for boundary demarcation. The regulations were only used in Mombasa
Old Town.

7.2 REGISTRATION OF DOCUMENTS ACT, 1901

A simple deeds registration system was introduced to the country by E.A. Regulations,
1901. The Registration of Documents Act was intended to give publicity to transactions
in land and to prevent concealed dealings. Under the Act, it was necessary to trace to a
good root of title before a transaction could be safely effected. Indexing was by names.

Registries were opened in Mombasa, Nairobi, Malindi, and Naivasha, but in 1915, only
Nairobi and Mombasa remained (after amalgamation with Naivasha and Malindi
registries respectively). Two registers were opened under this Act.
1. A register: Compulsory and recorded all transactions related to land and
immovable property.
2. B- register: Voluntary. Contains public record of deeds and other documents. It is
administered by Principal Registrar of Documents.

Adequate description was required for land but there was no provision for survey or
production of deed plans. This Act is now almost obsolete in as far as registration to land
is concerned.

7.3 CROWN LANDS ORDINANCE, 1902

This ordinance repealed the East Africa Land Regulations and gave the government
control over land (i.e. land could be sold or alienated by the government). Purchasers of
lands could erect boundary marks. There was proviso that underdeveloped land could be
forfeited to the government. The Commissioner granted leases for 99 years for land that
belonged to the government.

Commissioner was empowered to give Africans to occupy certain lands and to erect
temporary buildings (e.g. huts) for a period of time of 1 (one) year. Africans were also
required to pay monthly rent.
This ordinance was replaced by Government Lands Act. 1915.

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7.4 LAND TITLES ACT, 1908

This Act was introduced to facilitate adjudication of claims to land in the ten nautical mile
strip at the Coast. A land registration court (subordinate to the Supreme Court) was set
up and presided over by a Recorder of Titles. Successful claimants were granted a
certificate of title by the court. This certificate was conclusive evidence of ownership
(except in fraud, omission, error, description).

All unclaimed land was deemed government land and could be alienated. There was an
amendment in 1910 to provide for a deeds registration system. Conveyancing was done
by deed. Indexing was by parcels, supported by survey plans and deed plans.

The administration of this Act was difficult and the Act was suspended between 1922 and
1957. The Principal Registrar administers the Act.

7.5 GOVERNMENT LAND ACT, 1915

This Act replaced the Crown Lands Ordinance 1902 and was enacted to make further and
better provisions for leasing and disposal of government lands. The Commissioner of
Lands had power to give leases in towns for periods not exceeding 99 years, and
agricultural land of up to 999 years. Commissioner of Lands could also grant land in fee
simple.
The Act gave the Commissioner power to do almost anything with land once declared
Crown Land (it could be used ''anyhow''). This was quite frustrating to Africans. The 1921
Supreme Court judgement by Justice Barth in the case of Isaka Wainaina and Kamau
Gathomo vs. Murito wa Indagaya et.al. ruled that "the effect of Crown Lands Ordinance
1915 and the Kenya Colony Order in Council is, interalia, to vest land reserved for the use
of a Native Tribe in the Crown and in the consequence all native rights in such reserved
land disappear, the natives in occupation thereof becoming tenants- at-will of the
Crown''. (KLR Vol. IX, Part II, 1923, pp.102). Land required for support of native tribes
could be reserved under the Act.

Under this Act, registration of all transaction related to land was compulsory. The
registration system was a deeds system supported by deed plans based on accurate
survey giving a clear description of the property, its boundaries and extent with Director
of Surveys certifying the deed plans. Investigation to the root of title necessary and
indexing was by parcels. This Act is administered by the Principal Registrar of
Government Lands. There are registries in Mombasa and Nairobi.

7.6 REGISTRATION OF TITLES ACT, 1920

This Act introduced Torrens system of registration of title to Kenya. It has a simple
method of conveyancing and State guarantee of title. Registries were set up in Mombasa
for Coast and Nairobi for upcountry. It provides for compulsory registration of all new
titles including new grants under GLA, backed by deed plans. Whenever a transfer is
registered, a new title is registered and for purposes of prescription time must start to
run again from the time of registration.

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All earlier registration Acts were to be converted to RTA, but this was not done urgently.
Thus even today, deeds and titles registration systems co-exist although deeds systems
are almost obsolete. It is administered by the Principal Registrar of Titles.

7.7 LAND REGISTRATION (SPECIAL AREAS) ORDINANCE, 1959

Resulted from the recommendations of the Working Party on African Tenure which had
been set up to consider legislation and organization required in the individualization of
land tenure in Native Trust Lands. It provided for compulsory ground demarcation and
registration supported by a registry index map. The registry index map was not
conclusive on boundaries. This Ordinance was modelled on the English System of
registration of titles.

7.8. REGISTERED LAND ACT, 1963

This Act replaced the registration part of Land Registration (SA) Ordinance, 1959, and
introduced a new system of conveyancing aimed at replacing of traditional ways of
dealing in land. It was modelled on the English system.
Many areas have been brought to the register under this act in Kenya. The Act is
administered by the Chief Land Registrar. Eventually all registration of land in Kenya is
to be brought under this legislation

7.9. LAND REGISTRATION ACT, 2012

This Act was introduced in 2012 to “revise, consolidate and rationalize the registration
of titles to land and to give effect to the principles and objects of delved government in
land registration and for connected purposes”. This legislation is to replace the existing
laws that deal with land registration. Provisions of this Act are in line with the
Constitution of Kenya, 2010 and the National Land Policy of 2009. Currently the
Regulations are being discussed by various stakeholders. It is noteworthy that the RIM
and Deed Plans will be replaced by a map known as the Cadastral Map, which is styled
after the Registry Index Map.
The Act will be administered by a Chief Land Registrar.

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 8. SURVEY ACT (Cap 299, Laws of Kenya)
8.1 INTRODUCTION.

Section 22 of the Survey Act defines surveys which, may be carried out under the Act.
These include all the surveys which relate to registration of transactions in land or of title
to land, except first registration to land made under the provisions of the Land
Adjudication Act or the Land Consolidation Act.

The Survey Act and its regulations deal with the conduct of fixed boundary surveys. Fixed
boundary surveys in Kenya until this instant have resulted from2: -
1. New grant surveys for land allocated by the Commissioner of Lands under the
Government Lands Act (Cap 280). These grants are registered under the provisions
of the Registration of Titles Act (Cap 281). In urban areas where the Registered Land
Act has been applied (e.g. Mombasa Island) although grants are registered under
RLA, fixed boundaries are carried out.
2. Surveys for setting apart land in accordance with the Trust Land Act (Cap 288) in
areas of trust land where neither Consolidation nor Adjudication Acts have been
applied. These surveys are registered under provisions of Registration of Titles Act.
3. Surveys executed at the Coast at the request of the Recorder of Titles after he has
adjudicated claims under the provision of the Land Titles Act (Cap 282). These titles
are also registered under Registration of Titles Act.
4. Fixed boundary surveys under Section 22 of the Registered Titles Act.

These surveys are carried out by fixing and coordinating corner beacons of every plot.
The surveys are accurate and must be authenticated by the Director of Surveys. If beacons
are lost, they can be re-established in their original position by qualified surveyors.
Disputes the areas covered by these surveys are very few, and when they arise, they are
solved by parties engaging the services of either a licensed or Government Surveyor.

8.2 DEFINITION OF A SURVEYOR

A surveyor may be either a government surveyor or a licensed surveyor. A government

surveyor is any officer of the Survey department of the government authorized to carry
out surveys by the Director of Surveys. A licensed surveyor is a person duly licensed as a
surveyor, but does not include a government surveyor.

8.3 DIRECTOR OF SURVEYS

The Director of Surveys is appointed under the Survey Act and supervises its
administration. The Director is safeguarded by the Survey Act in that in execution of duty,
neither the Director, nor his officers working under the provisions of the Survey Act, may
be liable with regard to action or omission in good faith, without negligence.

2
The Land Act 2012 now deals with issues that GLA used to address. The Trust Land Act has also been replaced
by the Community Land Act, 2016. Land Registration is now under the Land Registration Act, 2012.

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8.4 LAND SURVEYORS BOARD

The Land Surveyors consists of the following persons: -

1. Director of Surveys as Chairman.
2. Seven (7) surveyors employed in the public service who are licensed surveyors or
holders of the E.A. Land Survey Certificate, and who are full members of the Institution
of Surveyors of Kenya (Chapter of Land Surveyors).
 Two (2) on the advice of the P.S. to the Ministry responsible for Land Survey
 Matters.
 Four (4) on the advice of each of the Permanent Secretaries of the ministries
responsible for Transport, Local Government, Forestry and Housing.
  One (1) on the advice of the Vice Chancellor of the University of Nairobi.
3. Four Licensed surveyors in private practice (elected by the licensed members of the
Institution of Surveyors of Kenya (Chapter of Land Surveyors).
4. i. Secretary
ii. Examiners and others.

8.5 DUTIES OF THE BOARD

1. Conducting of Examinations.
2. Grants licenses in accordance with the Survey Act.
3. Maintains a register of licensed surveyors.
4. Discipline against licensed surveyors in accordance with the Act.
5. Hears disputes between clients and licensed surveyors with respect to survey fees.
6. Hears disputes between the Director of Surveys and licensed surveyors with respect
to matters left to be determined by the Board.
7. Advises the Director on all the matters relating to cadastral surveys.

8.6 LICENSING OF SURVEYORS

The survey has comprehensive rules on the following:

(i) Eligible persons.
(ii) Those entitled to be examined.
(iii) Those who may be exempted.

8.7 DISCIPINE OF SURVEYORS

1. Board conducts an inquiry. If the board finds a surveyor guilty, or after having been
convicted of a criminal offence the board finds a surveyor unfit for practice, the board
may do the following:
a) Cancel licence.
b) Suspend licence for a period not exceeding three (3) years.
c) May take a light measure :-
 A fine not exceeding a thousand shillings (Kshs.1000 /=).
  Reprimand the licensed surveyor.
2. The surveyor is given a hearing (Advocate/himself).
3. If dissatisfied with the decision of the board, he may appeal to the High Court. No
further appeal is possible.

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8.8 CARRYING OUT SURVEYS

1. A licensed surveyor is responsible for anything he does and the government is not
liable for errors made by a licensed surveyor.
2. The law lays down reasonable rights of entry into land. The Director or any surveyor
is allowed to enter land for these reasons:
(i) Making or supervising any survey or resurvey.
(ii) Fixing any survey marks.
(iii) Inspecting survey marks.
(iv) Altering or repairing survey marks.
(v) Doing anything necessary for carrying out (i) to (iv).
(vi) Examining or inspecting surveys.
3. Whenever practical, a surveyor or Director of Surveys is required to give notice. If
seen on land, he should be able to show evidence of who he is.
4. The Law protects the marks made by the surveyor and provides that every
trigonometrical station, fundamental benchmark and boundary beacons be shown on
a plan which relates to registration of transactions in, or of title to a piece of land.
(i) No person may carry out rock blasting operations within an area reserved for a
fundamental benchmark.
(ii) Every grantee of land must ensure that survey marks are in place. If he cannot
find them, he can require the Director of Surveys to show them.
(iii) It is a criminal offence to tamper with any survey mark.
5. The Licensed Surveyors Code of Professional Conduct, 1997, was gazetted in April
1997, to regulate the conduct of Licensed Surveyors.

FGE 452: Cadastral Surveying - JNM 2021 Page 30