“With respect to the Kenyan law on property in land, the colonial legacy presents a mixed bag of benefits and some not-so good outcomes.”-By Kate Kiama

The above statement requires an interpretation of the effects of the colonial rule in regards to land and property rights. This paper will attempt to discuss the impact of such rule and the consequences both positive; if any, and negative, in respect to what Kenyan law on property rights has resulted to as a product of the same.

In the early 16^th and 17^th Centuries, Britain as with many other European allies embarked on empire building. This was the infamous period of the scramble and partition of Africa.[1] Previously, where a territory was taken over by conquest, it became essentially the property of the Crown or the stronger force that won the invasion.[2]After the ‘gentleman’s agreement’ in Berlin, the colonialist partitioned Africa and apportioned somewhat equal interests to colonial European powers in the vast continent. The division failed to consider African interests and as a result a look at the Africa map today will reveal very symmetrical boundaries that divided ethnic communities into two countries; for instance the Maasai Community[3] in Tanzania and Kenya and the Iteso community[4] also in Kenya and Uganda. This division of land was clearly unlawful and out of touch with the African people’s needs, culture and heritage. As a result many tribes failed to recognize the imposed laws and for this reason conflict erupted in respect of land rights and the same continues to plague the continent more than five decades later.

The Inland Territories

The Indian Land Acquisition Act 1894 was extended to the East Africa Protectorate in 1896 and allowed for the British administration to acquire land compulsorily for the railway and for government buildings and other public purposes. The East Africa (Lands) Order in Council 1901, vested crown land in the whole of the protectorate in the Commissioner and Consul-General as trustees not for the natives but for the Crown. The impact of such legislation in essence was dispossessing the true African owners of their inherent right to their property. The Commissioner could offer certificates of occupancy valid for 99 and 999 years to Europeans wishing to take up land at a consideration of pepper-corn.[5]The Crown Land Ordinance  1915 further re-defined crown land as to include land occupied by the native tribes, and land reserved by the governor for the use and support of members of the tribe. However this right did not surprisingly allow any member of the tribe to the right to alienate their own land. The case of Wainaina versus Murito[6] is to the conclusion that the 1915 legislation converted the protectorate into a colony and as a result all native rights in land were taken away and subsequently all  land vested in the crown leaving African’s as tenants at will of the crown in the land they actually occupied.

This was the genesis of the complex mess of the Kenyan Land Law as we know it to date. The Colonial legacy destined that land rights as amongst other interests were to the benefit of white settlers only, hence the common phrase ‘the White highlands’ as in reference to the Central and Rift Valley provinces of Kenya which are the most fertile lands for agriculture and farming activities in Kenya.

The Coastal Strip

In 1698, present day Zanzibar became part of the overseas holding of Oman after Saif Bin Sultan, the Imam of Oman, defeated the Portuguese in Mombasa. The Coastal strip was accordingly recognized as a sovereign territory by the British who could therefore not claim the territory as their own. The British administration signed a lease agreement to be entitled to access the land from the Sultan. The Land Title Ordinance provided for a system of adjudication of rights over the coastal strip for individuals who made a claim to ownership of land leased by the Sultanate  prior to 14^th December 1895.The Land Registration Court could issue a certificate of ownership if the claim succeed; valid as against the whole world. The ordinance also provided that land in the coastal strip which no claim had been made or allowed was deemed as Crown land ,thus ascertaining the Crown’s claim to radical title to land. This is majorly the reason how many coastal residence were disposed of the right to ownership of land.

The Registration Systems

The Registration of Documents Act 1902 allowed for the registration of deeds and all documents pertaining to land in relation to various isolated transactions. The Act was generally only applied to the normal practices of the colonialists in the discovered lands. The Land titles Act 1908 established a land registration court to ascertain who had individual title to land. This provision was applied in Malindi, Mombasa, Tana River District, the Sultanate of Witu and the Lamu Archipelago between 1909 and 1913.The application of the latter Act was only in regards to the coastal strip areas and hence only able to ascertain title to a selected minority group of African’s under the control of the Sultan. The Government Land Act 1915 was enacted to enable the alienation of crown lands. It in essence dispossessed African inhabitants of their land whilst introducing the English System of conveyancing by registering deeds to European settlers. The GLA deals with government grants prior to 1920 whether leasehold or freehold. The register under the GLA is modeled under the Land Title Act that is its system of registration of documents. Under this system it is necessary to trace title backwards up to the government grant. The Torrens system of title was subsequently introduced by the Registration of Title Act 1919.The RDA (1902), LTA (1908), GLA (1915) and RTA (1919) all championed for the rights of white settlers to the exclusion of African and Indian inhabitants.[7] The Registered Land Act enacted in 1963 was the first legislation to recognize claims by Africans under customary law and enabled the adjudication and subsequent registration of such rights. This was an important legislation passed at the epitome of pressure to liberate Africa and for a mounting pressure for African states towards attaining Self-Independence.

Pros and Cons of the Registration systems

Prior to the colonial legacy, granted land was held communally by various communities and ethnic groups. Introduction of several of the registration systems incorporated for the first time a formal system of recording various rights and interests in land through either a deed or title system. The major advancement of the Registered Land Act was to consolidate all the land in Kenya through the process of conversion and registration. Registration allowed for individual title to land previously held under customary law. The chief advantage of this is that individuals can now own property and property rights after consideration to the exclusion of others. The shortcoming of individual title has however resulted in subdivision of small portions of land in various smaller fragments with poor control and regulations from government. This has results in poor planning, lousy development and corruption and to some degree the destruction of the economic base of communities that need communal land rights such as nomads and pastoralists to sustain their way of life.

The Registration system has brought with it several complexities and technicalities and as a result of the multiple systems; it has left the envisioned register system in disarray leaving it quite prone to corruption as it has several loopholes and is difficult to comprehend and engage with. The systems have perennially failed to correct the injustices of dispossessed land right owner’s claim to land as it carries on with the assumption that present occupants are the true owners. The system inherited by the Kenyan government continued the same injustices and it seems to be a story of the same forest different monkeys in regards to the roles of the power holders and their relation with the people and the land. The Kenyan Constitution of 1963, section 205, was to the effect that all land formerly belonging to the British Crown (Crown Lands) was transferred to the President of Kenya on behalf of the Government of Kenya, by the Crown Land Ordinances of 1902 and 1915.The English system imposed on Kenya through the British system and now the Kenyan government, gave rise to various communities being regarded as squatters in their own land due to the extensive definition of the term crown and government land. The Ogiek community are the first to come to mind. Between 1969 and the 1990s, the government established Lake Nakuru and Mauche Settlement Schemes, with the aim of settling the landless Kenyans including the Ogiek community who had been dispossessed of their land. However, this was never the case, for those settled were senior civil servants, politicians and businessmen.[8]

The Land Adjudication Act[9] which aims to redress the issue of predisposed land allows for the claims of adjudication of land which may result in the award of titles. The title granted will be issued under RLA and is guaranteed by the state. Anyone who suffers loss by reason of mistake is to be indemnified by the state. The general rule under the RLA is that the proprietor’s title is unimpeachable except in the case subsequent registration which can be impeached on the grounds of fraud and mistake. The major strength or shortfall of the act, depending on where you are standing on the fence is that the first registration cannot be questioned under the Act.

Conclusion

Land issues still remain a very volatile issue in present day Kenya; the same can be seen as a direct result of the colonial injustices and especially the disposition of land rights. Land is inextricably linked to various Kenyan cultures and as a result remains the major cause of dispute and conflict between communities in both inland Kenya and around her borders.  The registration systems were aimed at registering various rights and interest in land but were introduced with the colonialist and white settlers in mind. This therefore offered minimal if any protection towards the African people. With the colonialist departure, a young democratic government took over the sins of their previous masters and attempted to address the land concerns by transferring collective land to be held by various government officials in the then federal system. This unfortunately resulted in the same sins if not worse of the colonialists.

The Constitution of Kenya 2010 for the first time links land and environmental issues in the constitution. Land is recognized as a common heritage and is offered better protection. The ambitious articles found in Chapter 9 aim to offer redress to  land rights issues  while acknowledging historical injustices with an  aim of progressive realization of the right for each Kenyan to be able to access land.

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[1] The Scramble for Africa (also known as the Race for Africa or Partition of Africa) was the invasion, occupation, colonization, and annexation of African territory by European powers during the New Imperialism (1870–1914) period, between 1881 and 1914.

[2] Calvin’s Case (1572) Eng.R .64 (1572-1616) 7 Co.Rep. 1a,77  E.R 377

[3] The Maasai territory reached its largest size in the mid-19th century, and covered almost all of the Great Rift Valley and adjacent lands from Mount Marsabit in the north to Dodoma in the south. The Nilotic group is now found in Northern Tanzania and in various parts of Kenya.

[4] The Teso (or Iteso, people of Teso) are an ethnic group of Nilots who currently reside in Eastern Uganda and in Western Kenya.

[5] The Legal Origins of Colonial Power in Kenya –Chapter 1

[6] (1923) 9 (2) K.L.R 102

[7] Land Law and Conveyancing in Kenya P L Onalo Part 2 Chapter 9 page 175

[8] Ogiek People v. District Commissioner Case No. 238/1999 (2000.03.23) (Indigenous Rights to Tinet Forest) and Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, 276/2003

[9] Chapter 284,