HISTORY OF THE THEORETICAL FOUNDATION OF PROPERTY

Question 1

Which jurisdiction approached IP as part of Property Law?

Answer 1

English Common Law jurisdiction.

Question 2

How does the English Common Law jurisdiction approach IP law?

Answer 2

As part of Property Law.

Question 3

What are the two categories of property?

Answer 3

Real property
Personal property

Question 4

What are the two maxims under real property?

Answer 4

Absolute interest.
Anything that is attached to the land forms part of the land.

Question 5

What are the degrees of distinction between real and personal property?

Answer 5

The degree of fixation.
Real property claims were enforced differently from personal property.

Question 6

What are the two categories of real property?

Answer 6

Corporeal hereditament
Incorporeal hereditament

Question 7

Give an example of corporeal hereditament and explain how to pick it out.

Answer 7

Crops
Has full fixation.

Question 8

What are the four values of property under continental law?

Answer 8

Capable of possession.
Has value.
Can be transferred.
It is outside the human body.

Question 9

How do we study corporeal and incorporeal hereditaments?

Answer 9

Through relationships and the bundle of rights e.g., one can own property but not have the full bundle of rights due to a lease.

Question 10

Why can’t the incorporeal exist without the corporeal?

Answer 10

Someone has to own or posses land (corporeal) for the intangible interest to exist. The intangible interest/incorporeal, can be extinguished e.g., through easements and leases.

Question 11

What is personal property?

Answer 11

Movables

Question 12

What are the two categories of personal property?

Answer 12

Choses in action.
Choses in possession.

Question 13

What are choses in possession?

Answer 13

Physical movables.

Question 14

How were choses in action reinforced?

Answer 14

Through judicial orders e.g., court orders.

Question 14

Where do shared and IP fall?

Answer 14

Personal property - choses in action.

Question 15

How is IP recognized in the Kenyan constitution?

Answer 15

Article 40 and 11 of the CoK refer to the two fold or possession:
a. Physical reality
b. Animus possidendi (animated possession)

Question 16

What is the prerequisite of animus possidendi?

Answer 16

Knowledge e.g., if you were given a bag that has money, you would have physical possession, but you lack knowledge of the money hence you lack animated possession due to the lack of intention to possess.

Question 17

Why is knowledge necessary for one to claim animus possidendi?

Answer 17

You require the intention to possess which requires knowldege of what you wish to possess.