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The Foundations of the Law of Property in Kenya Having introduced, albeit briefly, the concept of the law of property in land, it is important that we again briefly examine its foundations in Kenya. This is necessitated by the fact that any student of the law on proprietary transactions should not only be well versed in the law which creates the subjects of such transactions, but also with its foundations. Accordingly, the purport of this sub-topic shall be to introduce the reader to the peculiar circumstances and happenings, which have defined our law of property in land and by extension, the subjects of the Kenyan Law on proprietary transactions. This is done with a view to laying a concrete basis for the oncoming extensive and intensive study of the latter branch of Kenyan Law. To begin with, the foundations of the law of property in Kenya is to be traced first, to the customary land law tenure and secondly, to the colonial administration in Kenya. These two factors have largely defined the historical underpinnings of property law in Kenya which have consequently greatly informed and impacted the present regimes on property and proprietary transactions. Indeed, it would be well nigh impossible for anyone to attempt to grasp contemporary law of property in land, leave alone the law on proprietary transactions, if one did not possess a marked appreciation of the historical place of customary land tenure and the origin, nature, and concerns of colonialism in Kenya. 1.3.1. Customary Land Tenure System Customary land law tenure system largely obtained prior to the advent of colonialism in Kenya. But, as it would be seen hereunder, the system has been significantly replaced by the agrarian policy introduced by the colonial government in Kenya though some communities and areas in Kenya still remain under the authority of customary land law and over which application of formalization processes have had no significant consequences. It is nevertheless important to study this system of law for, as already
elucidated above, it forms the foundation of the regime of law regulating the ownership and possession of property and the province of proprietary transactions in Kenya. Customary land law tenure owes its legitimacy to the traditional societies (communities) where land was owned on a communal basis by different tribes (groups of people) who lived in the region presently Kenya before the advent of the colonial rule.1 Though Kenya is composed of diverse groups of people with different values and perception 2 and despite the fact of there being varying forms of ownership of land, it is possible to discern certain common characteristics in the land tenure systems of communities.3 However, it is vital to note that the social transformations of the people and their philosophy as determined by the dictates of the historical stage of development (hunting, gathering, herding and settled farming etc.) were important influences on the land tenure system of each traditional community.4 Customary land law tenure was (and is) anchored on the premise that land is much more than the physical soil. As such in many African societies, traditional philosophy ascribed a sacred significance to land. In particular land did not belong to a particular person but to God.5 The Njonjo Commission of Inquiry into the Land Law System of Kenya captured well this phenomenon. It stated thus in its 2002 report:
Much of the available literature on property relations in the pre-colonial period have generally characterized land tenure in Kenya as having been communal in the sense that the entire community exercised ownership over its entire land through some traditional institutions. See for example, Kenyatta Jomo, Facing Mount Kenya: The Traditional Life of the Gikuyu, Nairobi, Kenway Publications, 1938, p. 25; see also James R.W. and Fimbo G.M., Customary Land Law of Tanzania: A source Book, , East Africa Literature Bureau, Dar es Salaam, 1973, p. 3 2 Kenya has more than forty-two (42) ethnic communities, each having a variety of land tenure systems. This limits the extent to which one can broadly generalize and categorise customary systems of land tenure. 3 See Ogola B.D. and Mugabe J., “Land Tenure Systems and Natural Resource Management” in Juma C. and Ojwang J.B. (eds), In Land We Trust: Environment, Private Property and Constitutional Change, Initiatives Publishers and Zed Books, Nairobi, 1996, pp. 85-116 4 See Smokin Wanjala. “Recurrent Themes in Kenya’s Land Reform Discourse Since Independence” in Essays of Land Law: The Reform Debate in Kenya, Faculty of Law, University of Nairobi. 5 Among the Ogiek for instance, all land belonged to God. To the Gikuyu, the earth was considered a most sacred thing with the soil being especially honoured. See also Odour, M. , “Community Based Property Rights: A Case Study of the Endorois Community, Baringo District”, Draft Paper presented at in-house Workshop on Community Based Property Rights and Sustainable Natural Resource Management in Kenya, RECONCILE, Nakuru, 9th August, 2000
it is. As one Nigerian Chief put it. For land is not merely a factor of production. The main reason for this being that the economic lifestyle and the climatic conditions were such as not to favour settled forms of production thus discouraging individualized property ownership. first and foremost. the medium which defines and binds together social and spiritual relations within and across generations.‘…For indigenous Kenyans. it meant that members of the particular community could exercise certain rights over the land in varying degrees of equality with others of the same community. “land belongs to a vast family of which many are dead.7 In the Pastoral communities. and countless members are still unborn”. Government Printer. An “exclusionary” Land tenure system on the other hand seeks to accord to the individual primary control and primary access to the land in question thereby de-emphasizing and often negating corporate-sharing of access rights to the land in question 3 . In turn. Nairobi. which in turn defined rights of access and use of land. communal ownership was predominant and land use was basically intertwined around the community. land also has an important spiritual value. Membership into a community or its unit of course required the performance of certain obligations. In essence customary land tenure was inclusive in nature. This is one reason why debate about land tenure in Africa always revolves around the structure and dynamics of lineages and cultural communities rather than on strict juridical principles and precepts. as the pastoral economy laid a lot of emphasis on livestock rather than land. The degree of access and use exercised by any particular member would also depend on the status of that member. Issues about its ownership and control are therefore as much as about the structure of social and cultural relations as they are about access to material livelihoods. few are living. Moreover. November 2002 7 By inclusive land tenure is meant tenure which guarantees that the available land caters for any expansion in the community population on a continuing and re-adjusting basis through re-arrangement and reallocation of access rights to the land.’6 Since it was so. that right was secured by virtue of membership in that community or more specifically by membership into some socially distinct unit of that community. more priority was 6 Report of the Commission of Inquiry into Land Law System of Kenya on Principles of a National Land Policy Framework Constitutional Position of Land and New Institutional Framework for Land Administration.
. Among the Gikuyu. that is. F. Herein arises the problem of allocation.g. J. K. among the sedentary agricultural groups leading a more settled life.g.e. p. council of elders. J. In a traditional community the power of resolving this problem i. “Indigenous people and the Environment. an elder.D. Oxford Clarendon Press. (1994). A council of common grandfathers exercised the allocating role.8 Tenure relations under this customary system were controlled by some socially distinct authority usually comprising of a functionary e. 149 .given to livestock. management and use of land. p. the concept of property is the concept of a system of rules governing access to and control over material resources which include land. Tenure is family based and the head of the family holds rights on behalf of other family members. “CommunityBased Property Rights and the Management of Natural Resources in Kenya”. Unpublished LLB Dissertation presented to Faculty of Law. 2001. To the pastoralists. See Odour M. the composition of the allocating authority was dependent on the use for which the land was employed and the social organization of the community. a chief. spiritual leader etc. as follows: a.10 Control was for the purpose only of guaranteeing access to land and the resources found on it. The Right of Private Property. & Situma. In summary. the problem of determining peacefully and reasonably predictably who is to have access to what resources for what purposes and when. Thus for example.171 9 These functionaries served the allocator’s role in the tenure relations. The Right to Private Property. grazing. a man would acquire an estate by cleaning a vast tract of land often extending to a complete ridge. Adam Leach observes that there are at least five dominant concepts to most customary tenure systems. 1988. 26. . p. 8 See Asiema. The case of the Pastoral Maasai of Kenya” in 4 Colo. for example. He was recognized as the land controlling authority and allocated cultivation rights and controlled types and scopes of use with regard to land that required more expansive access tights e. See also Ogolla and Mugabe Supra n. 98 4 . Int’L Env’t L & Policy pp. the important resources were pasture and water whose availability fluctuated from time to time. Among the luo a common grandfather regulated use and access within a lineage set-up. eventually to the clan elders. According to Jeremy Waldron in his 1988 book. control of use and access generally began at the lower level of the family and progressed concentrically to the highest unit of control in the community.9 Such an authority solved the problem of allocation by overseeing the access. the allocating power vests in some local leader. The man would start a nuclear family which would expand later on to become an extended family at which point the locus of control would then shift progressively to the leaders of the greater lineage members. 32 10 Generally. London. See Waldron J. These material resources are usually scarce with the result that conflicts abound as to who is to get what at what time. 11. Decisions about whom to exclude and who not to exclude also rested with this controlling authority.P. Moi University.
other social and cultural changes occurring within communities have generally changed the outlook of their members with the result that traditional forms of production may no longer be fashionable. Individual and group membership of the social unit of production or political community have guaranteed rights of access to land or other natural resources. see also M. d. savages and who exercise a precarious rule which have not yet developed either an administrative or legislative system-even the idea of tribal ownership is unknown. 1988. as earlier noted. Other variables like population increase have generally forced communities to change their means of economic production. The occupation 5 . e.K.2. except in so far as certain tribes usually live in a particular region and resist the intrusion of weaker tribes…. 1. vol 4. claim to have any rights in land. Resources which do not require extensive investment are shared as common pasturage and managed by the relevant political authority or people with appropriate jurisdiction. 1968 12 The colonial masters were guided (or is it misguided?) By the notion that the African community had no concept of land ownership. 1. argued that since natives had no any form of political organization could. It was stated. there are certain areas and communities that still practice and hold fast to the customary land tenure system. The Colonial Factor in the Evolution of Kenyan Law of Property and Conveyancing 11 See Adam Leach. ‘The Origin of European Settlement in Kenya. 41-69.11 However.12 Moreover. pp. these customary conceptions about use and ownership of land began to be eroded. The colonial masters brought with them new institutions of ruler-ship which systematically undermined the traditional socially accepted institutions of leadership. Oxford University Press. elders. Private property rights accrue to individuals because of the investment of their labour in exploiting resources. Sorrenson.3. They thus sought to replace the African system of communal land ownership with individual ownership of land which was in direct contrast with the understanding of Africa’s idea on land ownership. “sovereignty if it can be said to exist at all…is made of chiefs. not accordingly. with the introduction of colonialism. Rights of control are vested in the political authority of the unit or community. c. “Land Reform and Socioeconomic Change in Kenya” in East Africa Journal of Peace & Human Rights. No. who are practically. Nairobi.b.P. It was for example. Nevertheless.
generally.15 This difficulty called for drastic revision of imperial jurisprudence which was 13 At the time of the scramble for Africa which saw East Africa divided into British East Africa (under Britain) and German East Africa (under Germany). The land so acquired could then be used as an incentive to attract settlers. and later the British and Kenya Government. thia area covers a strip jof land of 1900Km stretching from Vanga in the south coast to the Lamu archipelago in the North. In 1908 it bacame necessary to adjudicate land in the 10-mile strip in order to separate private property from Government land and the LTA of 1908 was passed for this purpose. In Kenya. rights in land could only be acquired by way of conquest. all rights to land in this territory. Those individuals who successfully claimed their land rights were issued with a freehold certificate of ownership or certificate of mortgage. Some of these methods were only possible within the ten-mile strip at the coast. the reason for Britain’s assumption of territorial jurisdiction over East Africa was not in the new acquisition of political and economic significance but in the wider field of international diplomacy. which was. However. the major concern of the colonial masters was capital accumulation which concern was initially hindered with Kenya being under the protectorate status. Sir William Mackinon of the IBEACO signed an agreement with Sultan Sayid Baghash of Zanzibar for leasehold on the 10-mile strip. imperial British East Africa Company (IBEACO). treaty and to an extent by sale. Nairobi. Mungeam’s emphasis is founded on the strategic significance of the opening of the Suez Canal in 1869 and the importance of controlling the head waters of river Nile viz Uganda. this position is found wanting considering that following the construction of the Kenya-Uganda Railway coupled with the discovery of a climate conducive for European settlement and agriculture. then under the jurisdiction of Zanzibar Sultan.14 Pursuant to an opinion given by the Law Officers of the British Crown in 1833 in respect of Ionian Island. See Okoth Ogendo. In 1902. The ownership of land in this area hjas changed hands severally between the Sultan of Zanzibar. agreement. except for the private property. In 1888 all the land in the area was ceded to the British Government by virtue of a concessinary agreement signed between the British and the Sultan of Zanzibar. To him. According to Mungeam. particularly. to the declaration of a protectorate over much of what is now Kenya on 15 June 1895. to the scramble for Africa via the Berlin Conference of 1885. and. Throughout this period. In 1885. This necessitated the need to have and wrest control over land from the natives. the British rule endured until 12 December 1963 when Kenya attained its independence.The incidence of colonialism in Kenya dates back.13 From then. 1991 14 The process of capital accumulation was to be effected through a plantation/estate system of agricultural production that invariably had to be under the control of Europeans. ACTS Press. the British policy in East Africa was based on the strategic rather than economic significance. were vested in the Crwon. Under the agreement. 15 Land tenure issues in the 10-mile coastal strip of East Africa are intertwined with the early Swahili settlement in the region and the Indian Ocean trade. Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya. the British recognized Kenya as of economic importance to their needs. The Omani Arabs conquered the East Coast of Africa in 1660 AD and declared their sovereighty over the entire coastal region from Mozambique to Somalia. there was little in East Africa to move the British Empire to assume jurisdiction (apart from the aforecited reason). the RDA was enacted to facilitate registration of documents relating to priate land in the area. the protectorate status did not confer radical title to the land in the territory. Title deeds issued for the RDA lands did not create new rights to land but confirmed the existing 6 . As a consequence thereof.
It vested crown lands in the whole of the protectorate in the Commissioner and Consul-General for the time being and such other trustees as might be appointed.undertaken gradually over years culminating in the explanation by the Law Officers in 1899 that their 1833 opinion only applied to protectorates “with a settled form of Government”. Alidina Visram (1913) KLR 14 17 S. for instance. 661. most of these titles have been converted to either the RLA or into the RTA. The settlers were not satisfied with this state of affairs. Some took to unorthodox means of acquiring land. 7 . In 1901. See the judgment in Mulwa Gwanobi v. These regulations empowered the colonial government to sell land freeholds within the Sultan’s dominions only. The opinion of the Law Officers of the Crown having been revised. and land reserved by the Governor for the use and support of members of the native tribes.O. the Indian Land Acquisition Act 1894 was extended to the protectorate and this allowed the administration to acquire land compulsorily for the railway. subject to the directions of the Secretary of State. ‘all public lands within the East Africa Protectorate which for the time being are subject to the control of Her Majesty by virtue of any treaty. Agreement. The Commissioner was empowered to make grants or leases of Crown lands on such terms and conditions as he might think fit.18In 1902 the Commissioner promulgated the Crown Lands Ordinance which provided for outright sales of land and leases of ninety-nine years duration.16 In the case of the East African protectorate. Today. convention. Elsewhere. and for other public purposes. These regulations modeled after the Imperial British Africa Company’s (IBEAC) 1894 Land regulations were promulgated vide the Zanzibar Order-In –council for the ‘peace. 16 Prior to the 1899 Law Officer’s opinion the British Government had already taken legislatives initiatives to remedy the problem albeit for immediate purposes. Initially these were for 21 years and later for 99 years. only certificates occupancy were available. the colonialist found the basis of subsequent legislative instruments touching on land. by purchasing it from the locals.R. In 1896 for example. This was in spite of the fact that the Natives had no title to the lands they occupied save for the right of occupation. In 1915 the Crown Lands Ordinance re-defined Crown lands so as to include land occupied by native tribes. to be held in trust for her Majesty. and all lands which have been or may have hereafter be acquired by Her Majesty under the Land Acquisition Act 1894 or otherwise howsoever’. for government buildings. 18 Crown land was defined as.19 It also made it clear that the Africans had no right to and did not pertain to new grants. Further in 1897 the Land Regulations was promulgated to draw a distinction between land within the Sultan’s dominions and land elsewhere in the protectorate. or of Her Majesty’s Protectorate. order and good governance in Kenya’. the East Africa (Lands) Order in Council17 was passed to give effect the Law Officer’s opinion. the law officers opined that the Foreign Jurisdiction Act of 1890 gave the Crown the power of disposition over “waste and unoccupied land”.
102. the complete disinheritance of Africans from their land. the British had already acquired full control of the Kenyan soil. by the time Kenya was declared a colony in 1920. Further. Therefore: (a) It had to be moulded in a way that allowed the settlers to adapt to the changed economic and political situation by identifying new centres of influence that were not overtly political. 8 . No. or it was reserved for their use. He could go upto 7500 hectares with the approval of secretary of the state. the natives who occupied these reserves were not vested with any rights therein and could thus not purport to alienate them.20 The import of this Ordinance was. whether they occupied it. Instead what happened was a general. throughout the colonial period. co-optive and preemptive process which gave the new power elites access to the European economy. It is the system created by the colonial regime that was inherited by the African Kenya government upon attaining independence in 1963 and still obtains today albeit with slight amendments. 20 The view that Africans or natives could not hold any title to land was judicially endorsed by Justice Barth in his notorious judgment as pronounced in the case of Wainaina V Murito (1922) 23 KLR Vol. IX. the commissioner could reserve from sale. and administrative infrastructure. continuity of colonial land policies. 30. See also Wasserman. 1973. the commissioner could grant settlers twenty-five hectares for purposes of agriculture. vol II. according to Ghai and McAuslan. 21 Ghai and McAuslan 22 The Njonjo Report in this regard. ‘it was expected that the transfer of power from colonial authorities to indigenous elites would lead to fundamental restructuring of the legacy created by the colonial masters. laws. G. the British government controlled the regime of property and conveyancing in Kenya.alienate any of the land. the commissioner could subdivide any town plot for purposes of construction. Under section 4 thereof. he could grant leases of agricultural land for a period of 999 years and for a period of 99 years in regard of town plots.where his lordship categorically stated that natives were tenants at the will of the Crown in respect of the land they occupied. 2. As such. reretrenchment. Notably.21 It must be further noted that the 1915 Crown Lands Ordinance marked the onset of private individual land ownership in Kenya. “The Independence Bargain: Kenyan Europeans and the Land Issue 1960-1962” in Journal of Commonwealth Political Studies. See Njonjo Report p. lease or other disposal any piece of Crown land that was required for use by natives. hence. 19 Pursuant to section 25 thereof. The maintenance of the colonial regime on land law and other factors is attributed to the decolonization process itself. In addition.22 The process represented an adaptive.. This however did not fully materialize. rightly observes that. Explanation for this lies primarily in the conduct of the decolonization process itself and the opportunity which it accorded the new power elites to gain access to the European economy’. Thus. In effect the colonial government had become the allocator of land rights.
retained. (1985). While the time aspect of tenure determines the duration of one’s rights to land. the one in Kenya have undergone very minimal developments. Tenure systems represent relations of people in society with respect to the essential and often scarce land. and (c) The process was geared towards preventing the mobilisation of a nationalist base that would be opposed to continuation of colonial policies after independence. it will be realized in the succeeding chapters that the theory and practice of conveyancing in Kenya resembles the one that obtains in England in a myriad of ways. while the system in England has over the years been refined to capture societal developments. used. 1. time and space. 25 See Fortmann L & Riddel J. if any. disposed of. The spatial dimension of tenure may be difficult to delineate in exclusive terms since different persons may exercise different rights over the same space at different times. Madison & Nairobi: Land Tenure Center & International Council for Research in Agroforestry 9 .24 In so far as people are concerned. people. Resource Tenure & Management of Natural Resources in Africa Ibid. economic and political situations of groups change. spatial dimensions limit the physical area over which the rights are to be exercised. & Bruce J. These rights are ordinarily not absolute since there are rules that govern the manner in which the person with tenure is to utilise their rights. LAND TENURE SYSTEMS IN KENYA Land tenure refers to the terms and conditions under which access to land rights are acquired. Land tenure ordinarily has at least three dimensions namely.25 23 24 See Lawry S. it is the interaction between different persons that determines the exact limits of the rights any one person has to a given parcel of land.(b) It had to achieve the aim of socialising the new elite into the colonial political economic and social patterns to ensure that the elite was able to rule functionally on an inherited political structure and co-operate with outgoing rulers.4. Trees and Tenure: An Annotated Bibliography. 1987. or transmitted.. changing as the social. 23 They are culture specific and dynamic. For these reasons. However.
pp. 1. 26 See Adam Leach. Government land in Kenya is the land that was vested in the Government of Kenya by sections 204 and 205 of the Constitution that was contained in Schedule 2 to the Kenya Independence Order in Council 1963 and section 21. it would only be logical that the same is not repeated here. designates the Government as private landowner and follows the provisions of the Crown Lands Ordinance of 1902 as subsequently amended and currently reflected and embodied in the GLA. 41-69 27 The source of the medieval theory of land law was the Norman invasion of England in 1066. otherwise he would not be the King of all England. public holding and customary (Group) tenure.e. so called “modern” (individual) tenure.. Public tenure.4. what they created was effectively a system of landholding in return for the performance of services. 22. Land was never granted by way of an actual transfer of ownership. 1998. all land belong to the state. therefore. To wish for an ownership of land that shall not be subject to royal rights is to wish for the state of nature. ‘all land in England must be held of the king of England. The historical a events and patterns that have impacted land law and conveyancing in Kenya. 3.26 In view of the fact that customary land tenure has already been expounded above. therefore. vol 4.’ See The History of English Law (2 nd edn. 25 and 26 of the Constitution of Kenya (Amendment) Act 1964.1 Public Tenure The system of public tenure stems from the idea or notion of the state as the owner of radical title i.27Public tenure.It is imperative that one understands the land tenure systems obtaining in Kenya so as to appreciate the different legal formalities available for the transfer of interests in land under the different land tenure systems. Thus came into being the classic feudal structure.e. vol 2. No. all land was owned by the crown and was subject to the Crown only upon the fulfillment of certain conditions. 1. Since the Normans had no written laws to bring with them to their newly conquered territory. Government land in turn comprises of two sub-categories i. According to the feudal theory. has yielded at least three main systems of land tenure. From this point onwards the King considered himself to be the owner of all land in England. as discussed above. is a province of Government land or public land. London 1968). viz. 10 . Thus as Pollock and Maitland were later to say. un-alienated and alienated Government land. “Land Reform and Socio-economic Change in Kenya” in East Africa Journal of Peace & Human Rights.
or which has been reserved for the use of a Government Ministry. watering points. and many others. 1. for a public purpose (this latter category is usually referred to as public utility land). grazing fields. ancestral and cultural grounds. Individual tenure system owes its roots to colonial instruments that sought to propagate ideals of agricultural production based on individual tenure system. The defining element of such lands is that they have not been alienated. meeting venues. fell under what are usually refereed to as “commons”. The community’s needs could not yield to private interests. 11 . In summary. these are lands vested in the Government and over which no private title has been created. ‘modern tenure’ forms the basis of official policy towards land in Kenya. In this regard.28 It means all the land in which every Kenyan has an interest by virtue of being a member of the public. In other words. public land is all that land which is vested in the public or held under public tenure. The most significant of these instruments was published in 1954 as A Plan to Intensify African Agriculture. widely known as the Swynnerton Plan.Unalienated Government land refers to Government land which is not for the time being leased to any other person or in respect of which the Commissioner of Lands has not issued any letter of allotment. In this category were found lands such as common pathways. is land which the Government has leased to a private individual or body corporate. Department. public land. No individual or group could be allocated rights of access to such public lands other than for purposes for which they had been set aside and recognized. State Corporation or other public institution. thus there was territory which served the interests of the community in its corporate status.4.2 Modern (Individual) Tenure Today. This plan saw the problem of land in terms of 28 It has been argued that the concept of ‘public land’ was not alien to African customary tenure. or land which has been set aside by way of planning. meaning given away or ceded by the Government to another person or entity. recreational areas/grounds. Alienated Government Land on the other hand. in customary law. The defining element of alienated Government Land is that it has been reserved for the use of a Government institution or it has been set aside for the use of the public or it has been leased to an individual.
12 . The Swynnerton Plan was introduced as land tenure reform policy with the aim of perpetuating land ownership centered on the individual. by purchase and sale of land. 29 The report summarized the advantages of individual tenure system in the following words: ‘individual tenure has great advantages in giving to the individual a sense of security in possession and in enabling. it was said that customary ownership created insecurity and hence provided poor incentives for investment. Moreover. Customary tenure based on ownership by the community was thought to tie up land in many hands hence serving as an obstacle towards attainment of a free market. an adjustment to be made by the community from the present unsatisfactory fragmented usage to units of an economic size. The ability of individuals to buy and sell land by a process of custom opens the door to that mobility and private initiative on which a greater sector of economic progress tends to depend. The general expectation was that natives would be able to get maximum returns from their farms and hence abandon the clamour for return of the land taken from them by the Europeans. individual tenure should lead to the release and encouragement 29 See East African Royal Commission Report (1955) Cmnd 9475. incapable of being sold. and secondly by intensification of agricultural production in the native areas. The urban wage earner can sell his homeland plot which so often the uneconomic one confident in the knowledge that he can buy another when occasion demands. Further. so the argument went. The problem was to be addressed firstly by the creation of an indefeasible title.tenure and the technology of production. then land ownership had to be “rescued” from the yokes of customary ownership. The specialist farmer is relieved of the liability of providing a place for the subsistence of his clan relations. to formal individual titles that could be exchanged freely in the market. Agricultural growth on the contrary required the conversion of kinship-based systems of customary tenure. If high levels of investment were to be achieved.
Quan (eds). DFID/IIED/NRI.’30 Predicated on these arguments.of new genius and to new experiment in finding the most productive use of land. Subsequently. 32. the Land Consolidation Act and the RLA.31 Private title was supposed to enable land to acquire a collateral feature so that it could be offered as security to obtain credit. Toulmin & J. It was posited that the registration of private rights in land resulted in more efficient use and conservation of the available land. See Jean-Phillipe Platteau (2000). These laws are in no doubt the forerunner of the present system obtaining under the Land Adjudication Act. 30 31 East African Royal Commission Report (1955) Cmnd 9475. consolidation and registration. pp. The RLA. the Native Land Tenure Rules were promulgated in 1956 establishing a system of adjudication. currently embodies the individual tenure system with the effect that the registration of an individual as the proprietor of land vests in that person an absolute title. the introduction of absolute proprietorships as a separate land tenure category by the enactment of the RLA was intended to extinguish customary tenure and replace it with rights that would be individually and exclusively held. paragraph 77. p. the Native Land Registration Ordinance was enacted to provide for individual ownership of land upon registration. which could be channelled towards further improvement. As will be seen later. as will be seen. London. Policy and Tenure in Africa. Evolving Land Rights. “Does Africa Need Land Reform” in C. 51-72 13 .
0. which as already noted are what constitute Kenya’s primary source of Property Law.O. However.CHAPTER TWO THE LEGAL FRAMEWORK REGULATING CONVEYANCING IN KENYA 2. The discussion here.D. The Registration of Documents Ordinance 1915 (Cap 285 Laws of Kenya) This piece of legislation was enacted alongside the 1915 Crown Lands Ordinance. (hereinafter the R. these two pieces of law have already been looked into in Chapter one and.). particularly when we examine the actual reasons which led to the enactment of some of these statutes by the colonial legislature. thus leading to what may be said to be the onset of administration of property rights in Kenya. INTRODUCTION This chapter aims to examine the various pieces of legislation. This will serve to tie up the prior discussion on the philosophical origins of colonialism. This was done with a view to facilitate the registration of documents relating to transactions involving alienated crown land. As such the starting point ought to be a discussion on the Crown Land ordinances of 1902 and 1915 which served to facilitate the alienation of crown land by the colonial government. the registries in Malindi and Naivasha were closed down and their registers transferred to Nairobi and Mombasa. 2. therefore. Subsequently.1. set up Registries in Nairobi. will begin with the Registration of Documents Ordinance of 1915 running through to the Registered Land Act of 1963. the same will not be repeated herein. 14 . then. Mombasa and Malindi. The Registration of Documents Ordinance.
who were mostly Arab settlers. The reasons why most indigenous coastals made no claim as required by the Ordinance are not difficult to understand. First of all.K. However. London. were ceded to the company. Even if they did. (Cap 300) and the Registration of Titles Act (Cap 281) regimes of registration of interests in land 2.A.P. All documents registered pursuant to its provisions pertained to land which was the subject of either 999 agricultural land leases which had been converted into freeholds by the commissioner pursuant to his powers under the 1915 Crown Land Ordinance. by virtue of an Administrative Agreement entered into in 1895 with the Imperial British East African Company (IBEAC) transferring control over lands ceded to the latter by virtue of the concession Agreement signed in 1888 with the Sultan. the primary cause o landlessness by indigenous people in the tenmile strip as we know it today. it is noteworthy that major parts of the Register kept pursuant to its provisions have been converted to the Registered Land Act. the Ordinance had no relevance to indigenous conceptions o land tenure. Secondly. was enacted in 1908 for purposes of facilitating alienation of Crown Land at the Coast. or RDA (A for Act) as it is currently referred to. M. initially an ordinance32. 1968 34 The land problems that have incessantly visited the coastal region have been linked to the 1908 Ordinance. According to the report of a Parliament Select Committee released in 1978. Oxford University Press. All surveys and consequent registrations under the RDO were based on the claims of ownership of land submitted by the residents of the coast to the Recorder of Titles. all rights to land in the Sultan’s territory.2.) lies in the fact that the colonial Government needed to distinguish between private land and crown land situate within the ten (10) mile coastal strip. the British authorities had assumed jurisdiction over the ten-mile coastal strip. the indigenous people of the strip had no knowledge of the existence of the Ordinance. Since independence the RDO.T. That they should be asked to lay claims upon the soil 15 . The Origins of European Settlement in Kenya. except private lands. See Sorrenson.It is noteworthy that the RDO was the very first registration statute in Kenya.. which was before then under the suzerainty of the Sultanate of Zanzibar. For it ruled out the possibility that these people and sections non-Mazrui Arab communities could ever acquire title or guaranteed access to land during the colonial period.34 32 33 The Land Titles Ordinance 1908 Prior to the enactment of the 1908 Ordinance. Under that Agreement.33 It must be reiterated that this strip had been leased from the Sultan of Zanzibar subject to the rights of the inhabitants. is applicable only to unadjudicated claims at the Coast. The precise background to the enactment of the Land Titles Act (hereinafter L. they never understood its provisions. It introduced a simple system of registration which had been applied in Zanzibar before. ‘adjudication of claims under the 1908 Ordinance (was). The Lands Title Act (Cap 283 Laws of Kenya) This Act.
35 Lastly. they only confirmed existing rights thus they did not in any way pertain to Government grants. And indeed after 1922 claims would no longer be received at all. the Ordinance was clearly biased against these people.. Further. that they may have had under Muslim law and their own customary law. i. in the Kenya Government. and the office of the Recorder of Titles was eventually closed down due to lack of funds in 1922. Hence for purposes of the 1908 and other colonial land ordinances land occupied by Africans was always treated as ownerless. the actual investigation o claims was done mainly by Mudirsusually Mazrui Arabs absorbed into colonial administration. It is worth noting that when the LTA had been enacted in 1908. Fifthly. under the LTA. e. these people also lost whatever rights to the product of the soil. that whatever is attached to the land becomes part o that land. 1978 35 Act No. …sixthly. whether as an individual or a community had any title to land.e. was vested in the colonial government and upon independence. because the Ordinance had introduced a basically British conception of land. coconuts etc. Therefore. the Registrar was known as the “Recorder of Titles” and the procedure of adjudicating private claims to land was borrowed from an Act of Ceylon. it had been expected that the process of adjudication of claims would be completed within a short time. The Registration of Titles Act (Cap 281 Laws of Kenya) This statute was enacted in 1920 whereupon all successfully claimed plots were registered under it. Thirdly.. Fourthly. the time limit within which claims could be made was extremely short.30 of Ceylon 16 . 2. the RTA was enacted principally for the purpose of improving the issuance of titles to land as well as regulating was a startling proposition.Those individuals who successfully claimed private land were issued with Certificates of Ownership giving freehold title or Certificates of Mortgage or Interest covering lease holds depending on the nature of title adjudicated. which was not successfully claimed by private individuals. For the colonial government and courts believed that no African. The titles issued under the LTA did not create new rights.g. Thus to date any titles adjudicated in 1920 and thereafter are registered under the Registration of Titles Act (hereinafter the RTA) unless they have been converted to Registered Land Act (Cap 300) titles. it must be pointed out that any plot. Unfortunately.3.who were generally unsympathetic to the indigenous people.’Report of the Select Committee on the Issue of land Ownership along the Ten-Mile Coastal Strip of Kenya. Government Printer. this was not to be so.
Apart from introducing a form of title registration based on the Australian Torrens system of title registration. Mortgage or Interest issued by the Recorder of Titles under the LTA.36 To date. However. as they are commonly known. the greatest being that it was neither a conveyancing nor a registration 36 The ITPA should be read in conjunction with the Indian Act (Amendments) Ordinance (Cap. RDO and the RTA were registration statutes. In a nutshell. This state of affairs was addressed vide recourse to Article 11(b) of the 1897 East Africa Order-in-council. 2. Naturally it follows that the concept of title was alien to the Kenyan legal system as it obtained then.4. (hereinafter referred to as the ITPA) was applied in Kenya as a substantive law. In addition. This Act. It was modelled upon the Registration of Title enactment of the Federal Republic of Malaya and the Transfer of Land Act. The Indian Transfer of Property Act 1882 Basically. there was no general substantive law governing the conduct of proprietary transactions or conveyancing. this Act relates to all land granted by the Government or subject to the Certificates of Ownership. it also applies to all leaseholds which have been converted from the terms of 99 years since 1920 (or even 999 years) to freeholds and to any titles converted on a voluntary basis from the Government Land Act. 1890 of Victoria. 2 (1948)) 17 . principally for the purpose of catering for the interests of European Settlers. the RTA also introduced conveyancing by statutory form. They only provided for the registration of ascertained interests in land but not the manner of dealing or transacting in the said interests. it must be pointed out that the ITPA (1882) had inherent shortcomings. (Cap 280) or LTA registration to RTA Titles. the LTA. as at the time of the enactment of the said statutes. the ITPA (1882) is still the main substantive law governing transactions in land concluded under the LTA and the Government Lands Act (Cap 300) hereinafter referred to as the GLA. Lastly it ought to be noted. This article allowed the application of the 1882 Indian Transfer of Property Act to Kenya.transactions in the same.
6. It was enacted after Africans had demanded the return of their land and expressed their insecurity with regard to the land they occupied. Clearly. Under this Act. First. it is deemed important to deal first with the Government Lands Act (Cap 280 Laws of Kenya).37 Secondly. The GLA lays down the procedures the Commissioner of Lands must follow in allocating land. it aimed at simplifying and unifying the registration 37 The phenomenon of African reserves (and indeed the RLA) owes its roots to the Native Lands Trust Ordinance. In this regard it provided that ‘all land that was consolidated or adjudicated in the African reserves and then offered to the Africans for settlement in the settlement schemes would be registered under it. only the President can sign documents granting title. The President can and has delegated his powers to the Commissioner of Lands.5. Basically. there was a burning need for a substantive enactment. This deficiency in the ITPA (1882) made it necessary for documents relating to transactions to be drawn in accordance with the provisions of the English (1845) Real Property Act and the 1881 Coveyancing Act of Victoria. The Registered Land Act (Cap 300 Laws of Kenya) The Registered Lands Act was enacted in 1963 with the aim of achieving two policy objectives. The Government Lands Act (Cap 280 Laws of Kenya) This enactment is no doubt a replacement of the 1915 Crown Lands Ordinance. 2. however. with the exception of leaseholds converted to 999 years or to freeholds under the RTA. Before dealing with this legislation. In addition. it abolished the compulsory registration required under the RDA in respect of transactions relating to unalienated Government Land. this Act governs all freeholds and leasehold interests granted by the Government prior to 1920. As can be expected. this statute was interpreted by 18 . Hence the Registered Land Act (Cap 280) was eventually to function as a substantive conveyancing and registration statute. 2.statute. it sought to enable land by Africans to be registered under the law. It was enacted to make further and better provisions for regulating the leasing and other dispositions of Government Land and related issues.
was spread between the above-mentioned statutes. subject to the power of the Governor to expropriate the same for public purposes (see Kalabri v. The ITPA which was meant to serve this purpose was subsequently found not to be meritorious. The policy objectives behind the enactment of the RLA were ignited by the problems that attended the GLA.G. 1938 18 KLR) 19 . at the time. it repealed the Land Registration (Special Areas) Act save for its adjudication and consolidation provisions. The GLA and RTA were limited only to the registration of title to land. They did not provide for the procedure through which interests in land registered under them would be conveyed. A. RTA and the ITPA. In this light. It provided for the conversion of a registration under any of the other statutes into a registration under its provisions. The Land Registration (Special Areas) Act had been enacted in 1959 shortly after the enactment of the Native Lands Registration Ordinance.process which. both of which were focused on recognizing and registering the claims of Natives to land under customary law colonial courts as giving the Natives rights of perpetual possession with respect to the reserves they occupied.
The Land Control Act (Cap 302 Laws of Kenya) The land Control Act was enacted in 1967 with an aim of regulating. established a Land Control Board whose consent had to be obtained before any transaction in land was seen as valid. had caused a dwindle in farm production as farms were neglected. a director of agriculture and six other persons. Appeals were to the land Control Appeals Tribunal whose decision was final. therefore.2. The Board was given power to impose conditions as to the development of land and failure to comply with these conditions would lead to one’s forfeiture of his land. the administrators saw the African Reserves as productive units and wanted to encourage the growing of cash crops.” The idea was further developed by the East African Royal 20 . In advocating for this. The 1944 Ordinance was only for the control of land in the ‘white highlands.7. This Ordinance put an end to the exclusive Europeans dealing in land as was earlier envisaged by the Crown Lands Ordinance of 1902 and 1915. a finance secretary.’ After Second World War.” The 1944 Ordinance. It ensured that only those who were capable of developing land could own it. It owes its origin to the Land Control Ordinance of 1944. They therefore needed a change from communal land ownership to individual land tenure. The land tenure committee appointed in 1941 recommended that ‘any system of land tenure would be unsatisfactory which permitted unrestricted transfer and unrestricted use and misuse of land. by means of public control. This was perhaps necessitated by the fact that the Second World War. The membership of the board comprised of the Commissioner who was the chairman. It was therefore necessary to take steps to ensure that land would be used for the benefit of the country. the manner in which the landowner or the interest in land is supposed to deal with his land. Swynnerton stated that Africans “must be provided with security of tenure through an indefeasible title as will encourage him to invest his labour and profits towards development of his farm as will enable him to offer it as security against such financial credit as may be open to him.
The recommendations of the two groups formed the basis of land registration and land control. Its salient provisions and judicial application will be discussed in depth under Chapter Eight of this book. It is under this Act that the regime of land control in Kenya is today embodied. There was therefore needed a system to control productivity of the land. At independence. These regulations were to serve until provisions could be made by law. the following: 21 . They in particular deal with a specific aspect of conveyancing. These statutes include. amongst others. and transactions made in favour of the Government of Trust Board.Commission which suggested that for the Africans to develop their land. selling and living on the land without adequately developing it. Under this Ordinance. Consent would not be granted to any transaction which would cause the creation of smaller pieces of land and reduce productivity. These rules served from 1963 to 1967 when the Land Control Act (Cap 302) was enacted. there are other numerous pieces of legislation that in one way or another are significant to a fuller and complete understanding and practice of conveyancing in the country. all transactions in land were to be controlled except three types of transactions: transmissions of land unless it involved sub-division. foreclosures. the provisions of the 1944 and 1959 Ordinances were incorporated in the Kenya (Land Control) Transitional Provisions Regulations 1963. This Act however did not depart from the system that had earlier existed except with regard to the composition of the Board and the application of the Act to most areas of the country. The aim was to prevent the Africans after registration from sub-dividing. However. It provided for establishment of Divisional and Provincial Land Control Boards without whose consent dealings in land would be void. These were the reasons for the enactment of the 1959 Land Control (Native Lands) Ordinance. It is important to note that the above-discussed Acts of Parliament are the main statutes that largely impact on the theory and practice of conveyancing in Kenya. they needed to own it individually.
5 of 1996. Stamp Duty Act. Companies Act. 38 The relevance of studying the legal framework behind conveyancing has been well elaborated by Kenny and Hewitson as quoted in the paragraph below: ‘Land law. (Cap 480). it must be noted that the multiple statutes (more than fifty) that regulate conveyancing in Kenya are an embodiment of many principles that. (Cap 486) Rent Restrictions Act. 1990. he who must understand and practice conveyancing in Kenya must be well versed with the provisions of the entire legal framework that regulates conveyancing in the country. The Distress for Rent Act. Nevertheless. and have their origin in the history and traditions of England. Law of Contract Act (Cap 23). 6. Physical Planning Act 1996 and Regulations. In conclusion. The Land Disputes Tribunals Act.these are names to strike terror into the hearts of students…the subjects become clearer and more interesting not 38 See supra n. Auctioneers Act No. Local Government Act.• • • • • • • • • • • • Sectional Properties Act No. Only then will one find that there is no magic in the word conveyance. are foreign. Hotels and Catering Establishments) Act. (Cap 293) Land Trusts Act (Cap 290) The relevance of these statutes to conveyancing in Kenya has been discussed herein under the various chapters that embody this book. 22 . Landlord and Tenants (Shops. (Cap 286). (Cap 286). The Acts lack uniformity due to the fact that they were enacted in the absence of a coherent land policy and were essentially aimed at addressing specific interests and issues at different times in history. Succession and Conveynacing. (Cap 301). (Cap 265). 12 of 1987. Trusts.
It would be hard to claim that anyone of these statutes is. p. Very much of this law detail is contained in statute law. Kenny & R. well or coherently drafted and their study presents difficulty. When statutory framework is monitored the case law becomes more accessible. taken as a whole. This familiarity and confidence can come only from frequent reading and use of the statutes. The good property lawyer is framework. Butterworths. 1994. Butterworths student Statutes -Property Law. Soon its study and practice will be enjoyed. v 23 . The complex picture of…property law begins to move into focus. Hewitson.by mastering a superficial guide but by coming to grips with the intricate and enthralling detail of each subject of property law.’39 39 P. but not studying them leaves property law opaque. London.H.