The Historical Development of Land Law in Kenya

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The historical milestones in the development of Land Law in Kenya began with the extension of jurisdiction from England to Kenya through colonization.

This development can be described in 4 phases:

  1. Acquisition phase
  2. Imposition phase
  3. Transformation phase
  4. Modern phase

1. Acquisition Phase (1890-1920)

From 1884-1885, France, Germany and Britain met at the Berlin Conference to peacefully divide Africa. This was known as the scramble for Africa.  These three European countries were looking for natural resources for their growing industrial sectors as well as potential market for the goods they would produce.

In 1890, the Foreign Jurisdiction Act was passed paving way for the Europeans. The aim was to acquire land on behalf of Her Majesty the Queen. This imposed English property law and tenure in land ownership in the colony.

The British acquired land through conquest, agreements, signing treaties and buying land like the 10 mile Coastal strip bought from the Sultan of Zanzibar.

In 1894, the Indian Land Acquisition Act was used as an instrument  to compulsory acquire land for the railway and other public purposes.

in 1895, Kenya became a protectorate.

The East African Order in Council of 1898 permitted the Commissioner in Trust to sell and lease land. In 1901, the East African Order in Council defined Crown Land. This was one of the first serious legislative provisions for land alienation.

In 1902, the Commissioner promulgated the Crown Land Ordinance that stated the Commissioner could sell freehold estates in land. The ordinance stated the rights to land for African settlers and unoccupied land could be sold or leased.

In 1904, The British introduced a policy to settle Africans on native reserves.For example, the Maasai were moved from their preferred grazing grounds in Central Rift Valley to two reserves. In 1911, one of these reserves was again moved against their wish.

These native reserves were formed on the basis of their ethnicity.They later became the administrative units we know today as locations and districts. .

The Crown Land Ordinance of 1902 was amended in 1915 to include Crown Land as land occupied by natives and land reserved by the governor for the use and support of natives. The 1915 Crown Lands Ordinance marked the complete disinheritance of the native Kenyans from their land by colonial authorities.

In 1920, Kenya became a colony.

2. Imposition Phase (1920-1950)

This was a period where many laws on land were passed. Africans became squatters in their own land. Land was alienated from Africans with little or no compensation.

The Kenya Annexation Order in Council of 1921 and the Kenya Colony Order in Council of 1921 were used to take away all native rights on land and leave it to the crown. This increased settler population.

The Devonshire White Paper of 1923 declared Kenya as an African country and native rights were paramount. The paper stated that whenever the interests of the native Africans clashed with those of Asian, European, or Arab settlers, those of the Africans should prevail. Although this Paper had little effect on the welfare of native Africans, it nonetheless set a precedent for future conflict resolution between the various groups living in Kenya.

N.B: A white paper is an authoritative report or document informing readers about a certain complex issue.

In 1927, The Hilton Young Commission was approved to inquire into African interests on land. The commission of Inquiry was appointed to look into the possible closer union of the British territories in East and Central Africa. These territories were individually economically underdeveloped, and it was suggested that some form of association would result both in cost savings and their more rapid development.

The Native Lands Trust Ordinance of 1930 was effected for the provision of native reserves set aside for Africans. The Native Land Trust Amendment Ordinance of 1932 declared that land could be temporarily excluded from natives to grant lease for the development of mineral resources.

Later, settlers came to realize that as long as natives were insecure in their own land, the security of the ownership of the white highlands by Europeans would also be in doubt. This led to the setting up of the Kenya Land Commission to advise the colonial government on land policy.

This commission published a report in 1934 stating that Africans had no claim on the White Highlands. If there were any claims at all, they were to compensated and not be given the land. Further, upon compensation, all customary rights will be relinquished forever.

The 1934 report recommended that the settler’s security of ownership of the white highlands be guaranteed by an Order in Council. This was done in the 1939 Kenya(Highlands) Order in Council.

In the same year the Kenya(Native Areas) Order in Council was enacted to set up the Native Trust Board which was to hold trust land for natives. The same Order in amended the definition “land” in the Government Lands (Repealed) Act(1915). This changed the meaning of “Crown Land.”

In 1938, the Natives Lands Trust Ordinance was enacted following the recommendation of the Carter Commission. The rules made thereunder were the Native Land Tenure Rule(1956) in which communal/familial land ownership was recognized.

In 1941, the British embarked on a series of resettlement schemes involving forceful evictions and repatriations of Kikuyu, Maasai, Kalenjin and other tribes between the central highlands and Rift Valley.

Throughout the 1940s the reserves grew overcrowded and insecure as the population increased. Agricultural production stagnated due to old production methods and pressure on land which led to rapid land deterioration, overstocking and soil erosion.

3. Transformation Phase(1950-2009)

This was a period if shift from communal land to individual tenure. From customary land ownership to British feudal system.

Under African customs, land is owned by the whole community as stated under Article 63 of the Constitution. This system changed and the custodians of land changed from elders and chiefs to Parliament.

In 1954, the Sweynnerton Plan for the Reform of African Land Tenure was approved to reform agricultural policies which develop agriculture in Kenya. These policies were aimed at expanding native’s cash crop production by improving the market, distribution and infrastructure used.

In 1956, some interim legislative measures were passed to set out the principles  and procedures for tenure reform.

In 1959, registration was to extinguish all existing rights and interests under customary law. The Land Control Ordinance was operating within the white highlands.

At independence, land was held under public, private or community tenure system.

Because the question of landlessness at independence had not been addressed, the British Government together with the independence government created programs to purchase land and allocated it to the landless. An example is the Million Acre Settlement Scheme where the British Government financed the transfer of a million acres of European farmland to an estimated 25,000 African families.

After independence, the unequal fundamentals of the colonial land tenure system and oppressive relationship between statutory and customary tenure remained.

The substantive and registration law for all land formerly held under customary law was codified in the Registered Land (Repealed) Act of 1963.This act was to replace all other laws related to land in Kenya.

In 1967 a new land control act was enacted. This act regulates the land market nowadays. The registration under the 1959 Land Registration Ordinance was converted into Registered Land Act (RLA) registrations.

In 1968, the Land Adjudication Act was passed.

As of 1969-1970, farms in Kenya were still clearly split into two categories – Large Farms (those in the former White Highlands) and small farms (those in the former African reserves) showing great inequality in reference to land.

By 1977, about 95% of the former White Highlands had been transferred to black
African ownership, principally Kikuyu, but also Embu and Meru (together these ethnic groups comprised 30% of the population).

Ethnic favoritism and political patronage also played an important role in this land acquisitions, as did corruption.Land tensions were exacerbated by political leaders who held office from 1978 until 2002.

In 2007, Kenya faced violence due to the disputed presidential elections. Much of the violence was linked to long-standing land disputes.

4. Modern Phase (2009- Present)

In 2009, the National Land Policy was passed as Sessional Paper no.3.

In 2010 the new Constitution was passed, containing Chapter 5 on Land and Environment.

In 2012, three land statutes were passed:

a.) The Land Act

b.) The Land Registration Act

c.) The National Land Commission Act.

In 2016 amendments were made to the three 2012 laws.

In 2016 the Community Land Act was passed.