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Land-Tenure Reform in Kenya: the Limits of Law

Published online by Cambridge University Press:  11 November 2008

Simon F. R. Coldham
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Most Africans in Kenya have always lived and worked on the land, and until fairly recently their land-tenure arrangements have been governed by customary law. Colonial administrators were divided about the desirability of granting individual titles to African farmers, and concentrated their efforts on persuading them to plant cash-crops, to fight soil erosion and, where necessary, to consolidate their holdings. It was only in the mid-1950s, when large-scale compulsory land consolidation schemes were initiated in the Kikuyu Land Unit, that serious thought was given to the nature of the title which the owner of a consolidated holding would acquire.1 The East Africa Royal Commission advocated the adjudication and registration of individual titles in suitable areas,2 and eventually a working party was appointed to consider what legislation would be necessary to implement this recommendation. As a result of its report,3 a system of registration of title based on the English model was introduced. Once the processes of adjudicacation and consolidation have been completed, the title of the owner is registered and, where appropriate, any interests not amounting to ownership are also entered on the Land Register. The land thereupon ceases to be subject to customary law,4 and is governed instead by the complete code of substantive law – based broadly on English law – which is contained today in the Registered Land Act, 1963.

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Articles
Information
The Journal of Modern African Studies , Volume 17 , Issue 4 , December 1979 , pp. 615 - 627
Copyright
Copyright © Cambridge University Press 1979

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References

page 615 note 1 For a detailed account of this period, see Sorrenson, M. P. K., Land Reform in the Kikuyu Country (Nairobi, 1967).Google Scholar

page 615 note 2 East Africa Royal Commission, 1953–54. Report (London, 1955), Cmd. 9475, ch. 23.Google Scholar

page 615 note 3 Report of the Working Party on African Land Tenure, 1957–1958 (Nairobi, 1958).Google Scholar

page 615 note 4 The one exception is that customary law continues to apply to intestate succession.

page 615 note 5 This expression ‘land adjudication programme’ will be used throughout this article to describe the whole procedure under which land rights are adjudicated, holdings consolidated (where appropriate), and registers of title drawn up.

page 616 note 1 Swynnerton, R. J. M., A Plan to Intensify the Development of African Agriculture in Kenya (Nairobi, 1954), section 13.Google Scholar

page 616 note 2 Republic of Kenya, Development Plan, 1970–1974 (Nairobi, 1969), section 8.8.Google Scholar

page 616 note 3 Much of the information that follows is based on the author's fieldwork in Kenya in 1973–5. While Gathinja is more developed than East Kadianga, both are relatively prosperous by the standards of most small-holder areas in Kenya. For this reason any conclusions drawn from the experiences of these two sub-locations are likely to be valid for the rest of the country where the land adjudication programme is being carried out.

page 616 note 4 For a discussion of some of these difficulties, see Coldham, S. F. R., ‘The Effect of Registration of Title upon Customary Land Rights in Kenya’, in Journal of African Law (London) XXII, 2, 1978, pp. 91 ff.Google Scholar

page 617 note 1 Most dispositions of registered land require the consent of the Land Control Board before they may be registered. For an examination of this system, see Coldham, S. F. R., ‘Land Control in Kenya’, in Journal of African Law, XXII, 1, 1978, pp. 63 ff.CrossRefGoogle Scholar

page 618 note 1 In a number of cases the courts have upheld the right of a registered proprietor to evict his Sons.

page 618 note 2 Homan, F. D., ‘Succession to Registered Land in the African Areas of Kenya’, in Journal of Lacal Administration Overseas (London), II, 1, 01 1963, p. 50.Google Scholar

page 619 note 1 For example, of the 88 succession cases settled in 1973 by the Kiharu District Magistrate's Court (whose jurisdiction covers Gathinja sub-location), not one was contested.

page 620 note 1 The following discussion concentrates on the Masai, among whom group ranches were first established.

page 621 note 1 Republic of Kenya, Report of the Mission on Land Consolidation and Registration in Kenya, 1965–1966 (Nairobi, 1966), para. 106.Google Scholar

page 621 note 2 A ministerial order was made in 1969 prescribing the provisions which must form part, and those which are deemed to form part of every group constitution.

page 622 note 1 The information contained in this paragraph is based on Jacobs, A. H., ‘The Pastoral Masai of Kenya’, a report submitted to the Ministry of Overseas Development, London, 1965.Google Scholar Jacobs, it is interesting to note, recommended that legal title to land should be vested in an incorporated enkutoto, with each individual or family becoming a shareholder.

page 622 note 2 Halderman, J. M., ‘An Analysis of Continued Semi-Nomadism on the Kaputiei Maasai Group Ranches: sociological and ecological factors’, University of Nairobi, Institute for Development Studies, Working Paper No. 78, 03 1972.Google Scholar

page 623 note 1 In the group ranches of Narok District, the average membership was about 100, but this would generally only include married males; the average number of those entitled to live on a ranch would be over 500.

page 623 note 2 The chairman of one of the group ranches studied estimated that the cattle of outsiders outnumbered those of the members.

page 624 note 1 This is also the case in Kajiado District; Halderman, op. cit. p. 29.

page 625 note 1 It should be mentioned that at the time of my fieldwork in Kenya there were plans to implement Phase 2 of the Livestock Development Programme, with the help of United States A.I.D. and the Swedish International Development Agency, financed by a loan from the World Bank. It will be interesting to know what effect this programme has on the future of the group ranches of Narok District.

page 626 note 1 My thinking on the communication of law in developing countries has been influenced by the work of Robert B. Seidman: see, especially, ‘The Communication of Law and the Process of Development’, in Wisconsin Law Review (Madison), 1972, p. 686;Google Scholar and The State, Law and Development (London, 1978).Google Scholar