Examining the Potential of the New Land Laws in Kenya in Resolving Historical Land Injustices.

i

MOI UNIVERSITY

SCHOOL OF LAW

TOWN CAMPUS ANNEX

TITLE: EXAMINING THE POTENTIAL OF THE NEW LAND LAWS IN RESOLVING

THE PROBLEM OF HISTORICAL LAND INJUSTICES.

A RESEARCH PAPER SUBMITTED IN PARTIAL FULFILLMENT OF THE

REQUIREMENTS OF MOI UNIVERSITY SCHOOL OF LAW FOR THE AWARD OF

A BACHELOR OF LAWS (LLB) DEGREE.

BY

NDIRANGU CHARLES GICHANGI.

REGISTRATION NUMBER: LLB/032/10.

SUPERVISOR:

PROFESSOR SIFUNA.

APRIL 2014.

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DECLARATION

I, NDIRANGU CHARLES GICHANGI, ADM NO. LLB/O32/10 do hereby declare that this

thesis is an original scholarly work of my hands and that the same has not been submitted by any

other person and is not currently being submitted by any other person for the award of a

Bachelor of Laws (LLB) degree or for the conferment of any other academic credential

whatsoever. As such, no part of this discourse may be produced, stored in a retrieval system, or

transmitted in any form or by any means – electronic, mechanical, via photocopying, recording,

or otherwise – without the prior permission of the author hereinabove mentioned.

_____________________________ __________________________

NDIRANGU CHARLES GICHANGI. DATE.

_____________________________ __________________________

PROFESSOR SIFUNA. DATE.

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DEDICATION

This research paper is dedicated to my parents, Mr.& Mrs Ndirangu Kabai for their invaluable

support and the mentorship that they have afforded me in my academic journey and their tireless

labour to make me a success, their efforts will forever be engrained in my heart.

To the late Brian Rao Ochieng who passed on the 13th

of December 2013.Bro, we started this

journey together but unfortunately the cruel hand of death took you just about when you were

about to finish law school. May the good Lord rest your soul in eternal peace.

To the communities and persons affected by past historical land injustices, yours cries have not

gone unheard.

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ACKNOWLEDGMENTS

This handiwork is both a reminder and commemoration of the input of many people. Without the

strength and the hand of the almighty God over my life, this work could not with no doubt have

seen the light of the day.

I will forever be indebted to my Supervisor Professor Sifuna for his guidance and invaluable

comments at each and every stage of this work. He has made me grow academically and

specifically sharpen my research skills.

I would also wish to express my profound gratitude to the entire group of supervisees of

Professor Sifuna who through frequent discussions, we were able to spend and acquire the knack

of aspiring high ideas and improve each other‟s research work. To Philes Mwabe Nyakenogo

who despite everything, was a constant fountain of inspiration and encouragement.

To my brothers Martin , Alfred and my only and loving sister Julia for their material and spiritual

support.

My very good friends Yogo , Mwangi, Obegi, Mutheci ,Karanja ,Allan, Abba ,Jackie ,Sauda,

Steve,Jackson,Cate,Sharon,Ivy,Patience,Janet,Philip,Maureen,Ron,Willies,Abuya,Ekutu,Richie,

Rosemary,Joy,Amon to mention just but a few for their assistance and invaluable support.

To each one of them, I am extremely grateful.

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TABLE OF CONTENTS

DECLARATION ............................................................................................................................. i

DEDICATION ................................................................................................................................ ii

ACKNOWLEDGMENTS ............................................................................................................. iii

CHAPTER ONE ............................................................................................................................. 1

1.0 INTRODUCTION AND BACKGROUND INFORMATION. ............................................... 1

1.1 INTRODUCTION. ................................................................................................................... 1

1.2 BACKGROUND INFORMATION. ........................................................................................ 2

1.2.1 LAND TENURE DURING THE PRE-COLONIAL TIMES. .............................................. 2

1.2.2 LAND TENURE DURING THE COLONIAL TIMES. ....................................................... 3

1.2.3 LAND TENURE DURING POST COLONIAL TIMES. ..................................................... 5

1.3 CONCLUSION. ........................................................................................................................ 7

1.4 SYNOPSIS OF THE CHAPTER CONTENT. ......................................................................... 8

CHAPTER TWO. ......................................................................................................................... 11

2.1 THE FORMS AND IMPACTS OF HISTORICAL LAND INJUSTICES. ........................... 11

2.1.1 INTRODUCTION. .............................................................................................................. 11

2.2. THE FORMS OF HISTORICAL LAND INJUSTICES. ...................................................... 12

2.2.1. THE COASTAL LAND PROBLEM. ................................................................................ 12

2.2.2 THE NUBIAN LAND QUESTION. ................................................................................... 14

2.2.3 LINGERING CLAIMS TO LAND BY CERTAIN COMMUNITIES. .............................. 16

2.2.4 DISPLACEMENT OCCASIONED BY LAND CLASHES. .............................................. 18

2.2.5 MINORITY COMMUNITIES AND THEIR CLAIMS TO LAND ................................... 20

2.2.6 THE SQUATTER PROBLEM. ........................................................................................... 22

2.2.7 CONFLICTS BETWEEN NEIGHBOURING COMMUNITIES. ...................................... 24

2.3 IMPACTS OF THE HISTORICAL LAND INJUSTICES. ................................................... 25

2.3.1 LANDLESSNESS. .............................................................................................................. 25

2.3.2 ILLEGAL AND IRREGULAR ALLOCATION OF LAND. ............................................. 27

2.4 CONCLUSION. ...................................................................................................................... 28

CHAPTER THREE ...................................................................................................................... 30

3.1 EXAMINING THE POTENTIAL OF THE NEW LAND LAWS IN SOLVING THE

PROBLEM OF HISTORICAL LAND INJUSTICES. ................................................................. 30

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3.2. INTRODUCTION. ................................................................................................................ 30

3.3. THE LEGAL FRAMEWORK ON LAND THAT EXISTED BEFORE THE ENACTMENT

OF THE NEW LAND LAWS. ..................................................................................................... 32

3.3.1 THE CONSTITUTION OF KENYA, 1963. ....................................................................... 32

3.3.2 THE GOVERNMENT LAND ACT. ................................................................................... 33

3.3.3 THE REGISTRATION OF TITLES ACT. ......................................................................... 34

3.3.4 THE LAND TITLES ACT. ................................................................................................. 34

3.3.5 THE INDIAN TRANSFER OF PROPERTY ACT............................................................. 35

3.4. THE CURRENT LEGAL FRAMEWORK ON LAND AND ITS POTENTIALITY IN

RESOLVING THE PROBLEM OF HISTORICAL LAND INJUSTICES. ................................ 35

3.4.1 THE CONSTITUTION OF KENYA, 2010. ....................................................................... 35

3.4.2 THE LAND ACT, CAP. 280, LAWS OF KENYA. ........................................................... 40

3.4.3 THE NATIONAL LAND COMMISSION ACT, CAP. 5D, LAWS OF KENYA. ........... 41

3.4.4 THE LAND REGISTRATION ACT, CAP. 300, LAWS OF KENYA. ............................. 43

3.4.5 ENVIRONMENT AND LAND COURT ACT, CAP. 12A, LAWS OF KENYA. ............ 43

3.5 BILLS. .................................................................................................................................... 44

3.5.1 THE EVICTIONS AND RESSETLEMENT PROCEDURES BILL, 2013. ...................... 44

3.6 THE PROBABILITY THAT THE NEW LAND LAWS MAY NOT RESOLVE THE

PROBLEM OF HISTORICAL LAND INJUSTICES. ................................................................. 45

CHAPTER FOUR. ........................................................................................................................ 47

4.0 CONCLUSION AND RECOMMENDATIONS. .................................................................. 47

4.1 CONCLUSION. ...................................................................................................................... 47

4.2 RECOMMENDATIONS ........................................................................................................ 51

4.2.1 The Need to Involve Public Participation in the Resolution of Historical land injustices. . 51

4.2.2 The Need to consider African Customary Law specifically on Land in resolution of

Historical land injustices. .............................................................................................................. 51

4.2.3 The Need to prescribe a time frame for parliament to enact the legislations concerning

resolution of historical land injustices. ......................................................................................... 52

4.2.4 The Need to establish a compensation mechanism to the victims of historical land injustices

especially to those whose land was grabbed. ................................................................................ 53

4.2.5 Peace building among the diverse communities in Kenya. ................................................. 53

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CHAPTER ONE

1.0 INTRODUCTION AND BACKGROUND INFORMATION.

1.1 INTRODUCTION.

Land formed the basis for the independence movement in Kenya. In addition to being a source of

economic accumulation and a means through which to access a variety of resources, it also has

symbolic, cultural, and historical importance.1

Land is the most important factor of production. From the past generations to the current ones

and possibly even to the future generations it will still remain the most vital factor of production.

It was observed in the Njonjo commission that:

Land to Kenyans is an emotive issue. It was at the core of resistance to British rule at the turn of the last

century and subsequent agitation for land thereafter up to the time of the struggle for independence. It is

therefore a central category of property in the lives of Kenya and as such requires special treatment in the

Constitution.2

The importance of land is further amplified by its inclusion in the constitution of Kenya3 under

chapter five which specifically deals with land and the environment. The constitution goes

further to state that land in Kenya shall be held, used and managed in a manner that is equitable,

efficient, productive and sustainable and in accordance with the principle of equitable access to

land inter alia.4Further the National Land Policy

5 amplifies the importance of land by stating that

it is a key resource for the people of Kenya. It goes further to state that the same land is both the

basis for the livelihoods for the vast majority of rural Kenyans and the foundation of economic

development of the country.

1 Erin O‟Brien and The Kenya Land Alliance, „Irregular and illegal land acquisition by Kenya‟s elites: trends,

processes and impacts of Kenya‟s land-grabbing phenomenon.‟ (2011).

<http://www.landcoalition.org/sites/default/files/publication/906/ERIN-KLA_Elites_web_14.03.11.pdf.> at 19th

November 2013. 2 Report of the Commission of Inquiry into the Land System of Kenya on Principles of a National Land Policy

Framework, Constitutional Position of Land and New Institutional Framework for Land Administration,

Government Printer, Nairobi, November 2002. 3The constitution of Kenya, 2010.

4 See Article 60 (1), Constitution of Kenya.

5 The National Land Policy, Ministry of Land, National Land Policy Secretariat, Land sector Non-State Actors,

Nakuru (2009).

http://www.landcoalition.org/sites/default/files/publication/906/ERIN-KLA_Elites_web_14.03.11.pdf

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1.2 BACKGROUND INFORMATION.

1.2.1 LAND TENURE DURING THE PRE-COLONIAL TIMES.

In the pre-colonial times land was owned on a communal basis by different tribes.6For instance

among the pastoral communities, communal ownership was predominant and land use was

basically intertwined around the community. The main reason for this was that the economic

lifestyle and the climatic conditions were such as not to favour settled forms of production thus

discouraging individualized property ownership. Moreover, as the pastoral economy laid a lot of

emphasis on livestock rather than land, more priority was given to livestock. To the pastoralists,

the important resources were pasture and water whose availability fluctuated from time to time.7

Customary land tenure was anchored on the premise that land is much more than the physical

soil. Thus, many African Societies ascribed a sacred significance to land. In particular land did

not belong to a particular person but to God.8This sacred significance was further amplified in

the report of the commission on inquiry into the land law system of Kenya where it was observed

that:

For indigenous Kenyans, land also has an important spiritual value. For land is not merely a factor of

production; it is; first and foremost, the medium which defines and binds together social and spiritual

relations within and across generations. As one Nigerian Chief put it, “land belongs to a vast family of

which many are dead, few are living, and countless members are still unborn”. 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. 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.9

This customary system tenure was under the control of some authority which comprised of a

chief, an elder, council of elders, spiritual leaders and many others. The authority would help in

redressing the problem of allocation of land rights. The authority was also vested with the

6 Tom O. Ojienda, Principles of Conveyancing in Kenya: A practical Approach (2007).

7 Asiema, J. K. and Situma, F.D.P.‟ Indigenous People and the Environment; The case of the pastoral Maasai in

Kenya.‟(1994) 4 Colo. J.Int’L Env’t L &Policy. Pp.149-171. 8 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. 9 Report of the commission of inquiry into Land Law system of Kenya on Principles of a National Land Policy

Framework Constitutional Provision of Land and new institutional framework for Land Administration, Government

Printer, Nairobi, November 2002.

3

authority to decide who to exclude and who not to exclude in the use of the land under their

control.

It is noteworthy that during the pre-colonial times, the problem of historical land injustices was

not in existence as communities owned land on a communal basis and the problem of land

disinheritance which was the precursor to historical land injustices was a grey issue.

Further it is right to observe that the communal ownership of land was largely replaced by

private ownership of land which was introduced by colonialism.

1.2.2 LAND TENURE DURING THE COLONIAL TIMES.

Colonialism in Kenya dates back, generally, to the scramble of Africa through the Berlin

conference of 1885, and precisely to the declaration of a protectorate over much what is now

Modern Kenya on 15th

June 1985.

The main reason for colonization was for capital accumulation and this was to be done mainly

through wresting control over the land from the Natives.10

Initially the colonial masters faced difficulties in their quest to wrest control over the land from

the natives because of the opinion given by the law officers of the British Crown in 1833 in

respect of Ionian Island which had the effect of not conferring the radical title to the land in the

territory since Kenya was a protectorate.11

Due to this difficulty, the law officers in 1899 stated

that their 1833 opinion only applied to protectorates with a settled form of government and

subsequently they stated that in the case of The East Africa Protectorate, The Foreign

Jurisdiction Act12

gave the crown the power of disposition over “waste and unoccupied land”.13

The result of the amendment of the opinion of the law officers gave the colonialists the ground to

enact legislations touching on land. And subsequently the East Africa (Lands) Order in Council

10 The process of capital accumulation was to be effected through a plantation/estate system of agriculture

production that invariably had to be under the control of Europeans. This necessitated the need to have and wrest

control over the land from the natives. The land so acquired could then be used as an incentive to attract settlers. 11

Supra note 6. 12

The Foreign Jurisdiction Act (1890). 13

Supra note 6.

4

was passed to give effect the law officers‟ opinion. The ordinance vested Crown Lands14

in the

whole of the protectorate in the Commissioner and Consul-General for the time being and such

other trustees as might be appointed to be held in trust for her majesty.15

Interestingly, in 1915 The Crowns Land Ordinance redefined crown‟s land so as to include land

occupied by native tribes and land reserved by the governor for the use and support of members

of the native tribes.16

This marked the genesis of disinheritance of communities‟ land. To add salt

to the injury the ordinance made it clear that the Africans had no right to alienate any of the land

whether they occupied it or it was reserved for their use.17

This Crowns Land Ordinance marked

the onset of private individual ownership of land. It also marked the disinheritance of Africans

from their land.

When Kenya was declared a colony in 1920, the British had already acquired full control of the

Kenya soil. Land rights were now being allocated by the colonial government which had

exclusive control of the regime of property and conveyancing.

Thus the colonization of Kenya was the genesis of historical land injustices. The colonial masters

would then use the land they had wrested from the Africans as an incentive to attract settlers who

would help in their quest of capital accumulation.

14 Crown Land was defined as all public land within the East Africa Protectorate which for the time being are

subject to the control of her majesty by virtue of any treaty, convention, agreement, or of Her Majesty‟s protectorate,

and all lands which have been or may have hereafter be acquired by Her Majesty under the Land Acquisition Act of

1894 or otherwise howsoever. 15

Supra note 6. 16

Pursuant to section 25 thereof, the commissioner could grant settlers twenty five hectares for purposes of

agriculture. He could go up to 7500 hectares with the approval of the secretary of state. In addition he could grant

leases of agricultural land for a period of 999 years and a period of 99 years in regard to town plots. Further, the

commissioner could subdivide any town plots for purposes of construction. Under section 4 thereof, the

commissioner could reserve from sale, lease or other disposal of crown land that was required for use by natives.

Notably, the natives who occupied these reserves were not vested with any rights therein and could thus not purport

to alienate them. 17

The view that Africans or natives could not hold any title to land was judicially endorsed by Justice Barth in his

notorious judgement as pronounced in the case of Wainaina vs. Murito (1922) 23 KLR Vol. IX, 102, where his

lordship categorically stated that the natives were tenants at the will of the crown in respect of the land they

occupied.

5

1.2.3 LAND TENURE DURING POST COLONIAL TIMES.

1.2.3.1 DURING THE INDEPENDENCE CONSTITUTION.

Upon attainment of independence, the natives were optimistic of getting their land back. They

were hopeful of better things with the end of colonialism and the ushering in of a new era. Yes,

the founding generation won their land back from the colonialists after fighting and defeating

them, but unfortunately the victory suffered a premature death as the land which they had

courageously fought for was taken away by a few. It has been rightly observed that Kenya‟s land

question has been characterized by large-scale land grabbing which has become a rampant

practice among the politically well connected- ironically referred to as the „politically correct ‟by

Kenyans –and the elite segments of the society. Thus land grabbing in Kenya unjustly benefits

international conglomerates and foreign investors, as it does in other countries, but also national

elites who work within legitimate institutions and legal frameworks to protect their ill-gotten

gains.18

The new government inherited the system of the colonial regime whereby it became the allocator

of land rights and thereby controlling the regime of property and conveyancing in Kenya. It is

ironical that the same system that the natives vehemently fought against was maintained by the

independence government and even for a considerable period of time albeit with minimal

amendments. The retention of the colonial regime on land law and other factors was attributed to

the decolonization process itself.19

The subsequent governments allocated much of the land to themselves and as such carrying on

the vice of disinheritance which the colonial masters had initiated. This continued disinheritance

brought about a lot of negative impacts to the natives which are generally summed as the

historical land injustices which include landlessness, the squatter problem, the coastal problem

among others.20

18 Supra note 1.

19 The Njonjo Report, in this regard rightly observes that, 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. This however did not fully materialize. Instead what happened was a general retrenchment, hence,

continuity of colonial land policies, laws and administrative infrastructures. 20

See Issues Paper No.2/2004 „The National Land Policy in Kenya: Addressing Historical Injustices.’ Kenya Land

Alliance.

6

It is as a result of these negative implications that the government sought to improve the situation

through the setting up of commissions to look into the land bottlenecks .The commissions drew

their legitimacy from the Commissions of Inquiry Act.21

Firstly there was established The Commission of Inquiry into the Land Law System of Kenya 22

(popularly known as The Njonjo commission) in November 1999.

And secondly there was established The Commission of inquiry into the illegal/ irregular

allocation of public land (popularly known as the Ndung‟u commission) with Paul Ndiritu

Ndung‟u as its chairman.23

The main purpose of its establishment was to look into the vice of

illegal or irregular allocation of public land to private persons.

It is noteworthy that despite the commissions being set up, there was no much improvement on

the resolution of the problem of historical land injustices. Further the independence constitution24

did not explicitly save for trust lands have provisions to safeguard land.25

It left the management

and use of land to be governed by acts of parliament which are prone to abuse by

parliamentarians.

1.2.3.2 PERIOD AFTER THE CONSTITUTION OF KENYA 2010.

With the advent of the new constitution there has been optimism that the problem of historical

land injustices will be put to rest. The potential of the new land laws in redressing the problem of

historical land injustices will be fully looked into later in this discourse. However, I will show

albeit not in detail how the era of the new constitution provides hope in redressing the problem

of historical land injustices.

The constitution has included a chapter on land thereby underpinning the suggestion by Njonjo

commission that the constitution should provide a special treatment to land.26

21 The Commissions of Inquiry Act Cap 102.

22 .See Gazette Notices No. 6593 & 6594 of 16

th November 1999 as read together with Gazette Notice No.1797 of

31st March 2000, Gazette Notice No. 2972 of 19

th May 2000 and Gazette Notice No. 4445 of 21

st July 2000.

23See Gazette Notice No.4559 of 4

th July 2003.

24 The Constitution of Kenya, 1963.

25 Ibid , Chapter IX.

26 Supra note 2.

7

Further the constitution has clearly stated that all land in Kenya belong to the people of Kenya,

collectively as a nation, as communities and as individuals.27

It has provided for the establishment of the National Lands Commission28

whose function inter

alia is to initiate investigations on its own initiative or on a complaint, into the present or

historical land injustices and recommend appropriate redress.29

The constitution further provides that parliament shall revise, consolidate and rationalize existing

land laws and also revise sectoral land use laws.30

In tandem with this the August house has

enacted The Land Act31

and The Land Registration Act32

.

It has also provided for the formulation of a National Land Policy33

that will help in the

implementation of the principles of land policy.34

1.3 CONCLUSION.

From the foregoing it is crystal clear that the vice of historical land injustices had its genesis with

colonization where the colonial masters disinherited the natives of their land. Ironically the

acquisition of independence by the natives did not address the problem. Rather this problem of

historical land injustices has persisted throughout past post independence government regimes.

These past governments instead of resettling all the displaced people and restoring their rights

over the land which originally belonged to them, they have done little if any, to redress the

problem. What is shocking is that the policies which the subsequent governments have come up

27 Article 61(1), Constitution of Kenya, 2010.

28 See Article 67(1), Ibid.

29 See Article 67(2) (e), Ibid.

30 See Article 68 (a) & (b), Ibid.

31 The Land Act, Cap 280.

32 The Land Registration Act, cap 300.

33 See Article 60 (2), Constitution of Kenya, 2010.

34 Article 60(1) provides for the principles of land policy to include:

a)Equitable access to land rights;

b) Security of land rights.

c) Sustainable and productive management of land resources.

d) Transparent and cost effective administration of land.

e) Sound conservation and protection of ecologically sensitive areas;

f) Elimination of gender discrimination in law ,customs and practices related to land and property in land;

and

g) Encouragement of communities to settle land disputes through recognized local community initiatives

consistent with this constitution.

8

with if not offering temporary solutions to the problem, have only worsened the situation at

hand.

1.4 SYNOPSIS OF THE CHAPTER CONTENT.

This contribution is organized into chapters as set out hereunder:

CHAPTER ONE: INTRODUCTION AND BACKGROUND INFORMATION.

Chapter one is basically concentrated on introduction and background information of the thesis.

CHAPTER TWO: THE FORMS OF HISTORICAL LAND INJUSTICES AND THEIR

IMPACTS.

The failure of the post independence governments to redress the problem of historical land

injustices has occasioned land problems that are persistent year in year out. These problems will

be well articulated in this chapter as the forms of historical land injustices.

They will include:

The squatter problem.35

This problem is attributed to colonization. Ever since the supreme court declared Africans as

tenants at will of the crown 36

following the promulgation of the Crowns Land Ordinance of

1915, the problem of landlessness has never been resolved.

The displacement of Africans from their land by the colonialists meant that they were left as

squatters. Further the subsequent government did not resettle the Africans as such but rather it

facilitated land grabbing. Thus the squatter problem still persists up to today.

Coastal land problem.37

This has been a long standing problem at the coast which was initiated by the colonial

government.

35 Supra note 19.

36 Wainaina vs. Murito (1922) 23 KLR Vol. IX, 102.

37 Supra note 34.

9

Displacement occasioned by land clashes.38

In the past years and as recent as 2007/2008 many people have been displaced from their land by

those claiming to be the original owners through politically instigated clashes. The „foreigners‟

found themselves in the „foreign land‟ as a result of displacement from their original homes by

the colonial masters.

Minority communities and their claims to land.39

There are minority communities such as the Ogiek, Sengwer and EL Molo who have faced land

problems since the colonial times and continue to be discriminated against up to now by the

current government.

The lingering claims to land by certain communities.40

Certain communities were displaced from their ancestral lands and settled elsewhere where their

needs such as pasture are not adequately met. Even after independence their original land

remained with the settlers or was purchased by other natives.

Neighbouring communities.41

The displacement of the African population and wholesome alienation of land brought about

recurring conflicts between neighbouring communities. These communities usually clash over

scarce resources such as water and pasture. For instance the Marakwet, Pokot and Turkana.

CHAPTER THREE: EXAMINING THE POTENTIAL OF THE NEW LAND LAWS IN

SOLVING THE PROBLEM OF HISTORICAL LAND INJUSTICES.

The acquisition of independence by the natives failed to reverse the loss of their land. In fact the

colonial legislation which protected the rights of the land title holders was inherited by the first

post independence government. More so the independence constitution provided for an elaborate

protection of private property without taking into account the history of its acquisition.

Successive post independence governments have continued to uphold the sanctity of privately

38 Ibid.

39 Ibid.

40 Ibid.

41 Supra note 34.

10

owned land to the frustration of the large number of Kenyans who had been disposed through

colonialism leaving them either as squatters or landless in their ancestral land.42

It is not until recently that there have been enacted new land laws and they will form the basis of

this chapter as I will embark on analyzing their potentiality in resolving the problem of Historical

land injustices.

CHAPTER FOUR: CONCLUSION AND RECOMMENDATIONS.

This chapter will conclude the whole thesis and make recommendations on methods which

Kenya would employ in order to solve the problem of historical land injustices once and for all.

42 Kenya Land Alliance and Kenya Human Rights Commission, „Righting the wrongs: Historical injustices and

Land Reforms in Kenya‟ <http://www.mokoro.co.uk/files/13/file/lria/kla_historical_injustices_brief.pdf>.at 20th

November 2013.

http://www.mokoro.co.uk/files/13/file/lria/kla_historical_injustices_brief.pdf

11

CHAPTER TWO.

2.1 THE FORMS AND IMPACTS OF HISTORICAL LAND INJUSTICES.

2.1.1 INTRODUCTION.

In the previous chapter I have detailed how the colonial masters disinherited the Natives from

their land and destroyed the communal ownership of land by introducing individual ownership of

land. The colonial masters later implemented foreign laws to disinherit indigenous communities

of their land.43

Further it has been observed that when the colonial government had accomplished

the task of acquiring land from the Kenyan people, it aggressively set out to destroy African

customary land tenure because the latter was viewed as inhibiting the main goal of economically

exploiting all the natural resources found in the colony.44

It is this disinheritance that marked the

onset of historical land injustices in Kenya.

A historical land injustice has been defined as:

A land grievance which stretches back to the colonial land policies and laws that resulted in the

disinheritance of communities from their land. Such grievances were not resolved upon the attainment of

independence. They have persisted throughout the previous government regimes. They remain sticking

points in the efforts to development and nation building.45

The land grievances have not been resolved because successive post independence governments

have failed to address the land problem in a holistic manner. The land policies pursued after

independence have either worsened the situation or offered temporary solutions to the land

problems at hand. The result of this approach by the government is that there are a number of

land problems that are still a thorn in the flesh in the country.

These land problems that have refused to go away entail the forms of historical land injustices

which will be comprehensively looked at in this chapter. The chapter will conclude by looking at

the impacts of these Historical land injustices.

43 Smokin C. Wanjala, „Land Ownership and Use in Kenya: Past, Present and Future‟ in S.C .Wanjala: Essays on

Land Law: The Reform Debate in Kenya (2000) at p 27-29. 44

Smokin C. Wanjala, „Recurrent Themes in Kenya‟s Land Reform Discourse since Independence‟ in S.C. Wanjala:

Essays on Land Law: The Reform Debate in Kenya (2000) at p 173. 45

Supra note 19.

12

2.2. THE FORMS OF HISTORICAL LAND INJUSTICES.

2.2.1. THE COASTAL LAND PROBLEM.

Prior to independence all land ten miles inland from the beach fell, for political purposes, under

the rule of the Sultan of Zanzibar. Competing claims of three groups complicated the ownership

of this area. First the Kenya colonial government claimed ownership of all areas which had not

been occupied at the time colonial rule was established. This was covered by the concept of

crown land. The second group of claimants was Arab land owners who claimed ownership of

some portions. These ownerships were registered as such under the Land Titles Act46

, enacted in

1908 to facilitate recognition of these interests. The third group was people like the Giriama and

Duruma, who held land under customary land tenure.47

At independence, the State acquired title to all land formerly held under the rule of the Sultan.

And subsequently, with the creation of a land title, modern tenure has displaced customary land

rights. People from upcountry have been able to acquire large areas of land through purchase of

titles because of the ignorance of the local people. It is in this way that land at the Coast has

afforded substantial land resources for divestiture to private ownership to the exclusion of local

inhabitants.48

Such titleholders are viewed as aliens who have cheated the locals out of their land.

The colonial government introduced a system whereby those claimining ownership rights within

the Ten mile coastal strip could get titles under The Lands Title Ordinance49

.This process gave

undue advantage to the few who were aware of the office of the recorder of the titles. However

the majority of the local inhabitants at the coast were ignorant of this procedure and thus they

could not lay any claims of ownership as envisaged in the Ordinance. Consequently all land

inhabited by the locals was declared crown land and became trust land at independence.50

This

marked the genesis of the disinheritance of the land that belonged to the local inhabitants at the

ten mile coastal strip.

46 The Land Titles Act, Cap 283 Laws of Kenya.

47 Adam Leach, „Land Reform and Socio –Economic Change in Kenya‟ in S.C. Wanjala : Essays on Land Law: The

Reform Debate in Kenya(2000) at p 205. 48

Ibid. 49

Land Titles Ordinance, 1908. 50

Supra note 19.

13

However many people of Arab origin had acquired titles to vast portions of the land within the

ten mile coastal strip. And even to this day they continue to collect rent from the locals.51

Thus it

is clear that the local inhabitants not only face the problem of landlessness but also the problem

of absentee landlordism. It is ironical that the local inhabitants at the coast are squatters in their

own land. For instance, the then Minister for Lands James Orengo had appealed to the provincial

administration in the coast region to desist from evicting the squatters from the land pending

determination of the land ownership. He further stated that any convictions must be done in a

humane manner and proper consultations must be done before evictions.52

It is worth noting that the land problems that have incessantly visited the coastal region have

been linked to the 1908 ordinance. It has been observed that:

Adjudication of claims under the 1908 Ordinance was the primary cause of landlessness by

indigenous people in the ten-mile coastal strip as we know it today. For it ruled out the

possibility that these people and sections of non- Mazrui Arab communities could ever acquire

title or guaranteed access to land during the colonial period. The reasons why most indigenous

coastal made no claim as required by the ordinance are not difficult to understand. First of all,

the indigenous people of the strip had no knowledge of the existence of the Ordinance. Even if

they did, they never understood its provisions. Secondly, the ordinance had no relevance to

indigenous conceptions of land tenure. That they should be asked to lay claims upon the soil was

a startling proposition. Thirdly, the Ordinance was clearly biased against these people.For the

colonial Government and courts believed that no African, whether as an individual or as a

community had any title to land. Hence for purposes of the 1908 and other colonial land

Ordinances land occupied by Africans was always treated as ownerless. Fourthly, the actual

investigation of claims was done mainly by Mudirs-usually Mazrui Arabs absorbed into colonial

administration-who were generally unsympathetic to the indigenous people. Fifthly, the time

limit within which claims could be made was extremely short. And indeed after 1922 claims

would no longer be received at all…sixthly, because the Ordinance had introduced a basically

British conception of land, i.e. that whatever is attached to the land becomes part of that land,

51 Ibid.

52 The Ministry of Lands, „Coastal Land Issues to be Resolved.‟ (2010).

<http://www.lands.go.ke/index.php?option=com_content&task=view&id=347&Itemid=48> As at 11 December

2013.

http://www.lands.go.ke/index.php?option=com_content&task=view&id=347&Itemid=48

14

these people also lost whatever rights to the product of the soil, e.g. coconuts etc. that they may

have had under Muslim law and their own customary law…53

2.2.2 THE NUBIAN LAND QUESTION.

The Nubian community moved and settled in Kenya from the Sudan as part of the Kings African

Rifles (KAR) during the First World War. They were moved and settled in the Kibera area of

Nairobi by the colonial government.54

They were loyalists to the British Army and as a result

they were rewarded with land in Kibera55

, Nairobi.56

It was after the Second World War that they

made demands for land given the fact that their counterparts were being settled in what became

known as the „White Highlands‟. The Nubians have lived in Kibera since then to the present

time. There are Nubian Generations who know Kenya as their only home. However the

government policy has treated The Nubians as second class citizens especially regarding their

rights to the land they occupy. They have been denied titles to the land they inhabit. Instead other

communities have since moved into the area and acquired titles to parts of the land. They have

held demonstrations demanding their rights just as other citizens. They do not only inhabit

Kibera area but also other parts of the country such as Kisumu.57

Originally , in 1912 the British government had designated 4,100 acres of land for the Nubians to

settle, which it finally granted to the soldiers and their dependants in 1917.However in the

succeeding years, The Nubian community, whose population is currently estimated at

100,000,experienced numerous challenges with the land under their occupation being gradually

gobbled up by new housing estates and other buildings that sprung up in the vicinity leaving only

288 acres of land to the Nubian community.58

53 Report of the Select Committee on the Issue of Land Ownership along the Ten-Mile Coastal Strip of Kenya,

Government Printer, 1978. 54

Supra note 19 55

Kibera is a corrupted word from Kinubi (Nubian language) word „kibra‟ which means a place of many trees or

forests. 56

Heine, B. „The Nubi Language of Kibera: An Arabic Creole Grammatical Sketch and Vocabulary. Berlin:

Dietrich Reiner.‟(1982) 3 Language and atlas of Kenya. 57

Supra note 19. 58

The Ministry of Lands, „Securing Kibera : Communities Agree To Live Harmoniously „(2013)

<http://www.lands.go.ke/index.php?option=com_content&task=view&id=488&Itemid=48>As at 8 December

2013.


15

It has been a persistent problem since the colonial times and the post independence governments

have been unable to address the situation to its conclusion. The fact that other communities have

inhabited the area and acquired titles complicates the matter further.59

It is not until recently that

president Uhuru Kenyatta attempted to issue a communal title to the Nubian community in

Kibera but the process did not go through because of protests in Kibera opposed to the settlement

of the landless Nubians.

It is on this note that a section of Muslim leaders-Council of Imams and Preachers of Kenya- has

asked President Kenyatta to go ahead and issue title deeds to the Nubian community in Nairobi‟s

Kibera slum and not to be deterred by the recent protests in the area by residents opposed to the

programme. They noted that they were baffled by a recent protest in Kibera by some Kenyans

opposed to settlement of the landless Nubians since they never saw such protests when a huge

chunk of Kibera land was dished out to the high and mighty of previous regimes. They described

the Nubians as the indigenous Kibera land owners and that Non-Nubians living in Kibera had no

right to oppose the settlement of their neighbours who have been hosting them for many

decades.60

The process of issuance of a communal title to the Nubian community living in Kibera began

with the brokerage of a agreement engineered by Hon. Charity Ngilu61

stating that the

communities that live in the expansive Kibera slum would live together harmoniously. That

agreement was seen as a major breakthrough for the government and was viewed as a pointer to

the reversal of fortunes for a community that has for over a century lived in Kenya as a stateless

community.62

From the foregoing it is clear that the Nubian community has faced great challenges in their

pursuit to acquire titles to the land in Kibera which they believe belongs to them. They have not

been recognized as being Kenyans to the extent that they are labeled as the detribalized

community. However with the recent developments, there seems to be hope to the Nubian

community in their quest to be recognized as one of the Kenyan communities in addition to them

59 Ibid.

60 Galgalo Bocha, „Muslims urge Uhuru to give Nubians titles‟ Daily Nation, 23 December 2013, 23.

61 The incumbent Cabinet Secretary for Land, Housing and Urban Development.

62 Supra note 56.

16

being granted title to their land. However until the title(s) is granted, the Nubian land question

still remains a historical land injustice to the Nubian community.

2.2.3 LINGERING CLAIMS TO LAND BY CERTAIN COMMUNITIES.

Up to now certain communities are still agitating for their land which they believe was taken

away from them illegally. The lands in question either remained in the hands of the white settlers

or were purchased by other communities who settled thereupon attainment of independence.63

Some of the communities that that still have lingering claims to land include the Pokot and the

Maasai. The Pokot agitate for the land which formed Trans-Nzoia District in the Western Rift

while on the other hand The Maasai agitate for the land which formed Laikipia District inter

alia. In both cases the communities were pushed into marginal areas which have not adequately

catered for their pastoral needs.64

Traditionally the Maasais were pastoralists raising mainly cattle but also small stocks of other

animals such as goats and sheep. They lived side by side with wildlife because they tolerated

wildlife. The whites came with the notion of wildlife conservation which led to appropriation of

Maasai rangelands to create national parks and game reserves.65

However the main contributor to

the disinheritance of the Maasai land was the disinheritance of their land by British colonialists.

This notion did not change upon independence as white settlers continued to occupy that land or

other communities purchased the land and settled there.

The predicament of the Maasai with land especially with what is now known as Laikipia

County66

has been well documented not only in Kenya but worldwide. The Maasai have been

agitating to get their land back. They believe they were cheated out of their land by the British

colonialists.

The British came and sought to destroy the communal ownership of land of the Maasai. They

claimed they were wanderers who must be dealt with so as to prevent them from destroying the

63 Supra note 19.

64 Ibid.

65 Parkipuny, M.S. „Pastoralism, Conservation and Development in the Greater Serengeti Region‟ (1991) London:

IIED. 66

First schedule and Article 6 ,Constitution of Kenya, 2010.

17

environment and wasting or under utilizing the land.67

It is on this note that Justice Moijo Ole

Keiwua notes:

The British who came, saw and coveted the land disrupted communal land ownership. A hasty study of the

Maasai was undertaken with equally hasty conclusions made. The rights of the Maasai to own their land

had been watered down to mere grazing rights…Eliot cannot in fairness call the Maasai wanderers.

Between the Maasai on their land, and the British who had wandered all the way from little England, who

was a wanderer?68

The Maasai predicament began with the signing of the said Anglo-Maasai Agreement69

„between‟ the Maasais and the colonial government. The agreement stipulated that:

The Maasai leaders „of our own free will‟, decided that it is for our best interests to remove our people,

flocks, and herds into definite reservations away from the railway line, and away from any land that may be

thrown open to European settlement .70

Olonana Ole Mbatiany71

had no authority to sign the „agreement‟ on behalf of the Maasais and

they rightfully disowned the Agreement on the ground that it was void abinitio. However the

British thought wisely and came up with another agreement signed by the same in

1911.However, in 1912 a group of Maasai , led by one Mr. Murket ole Nchoko , filed a suit in

the court of Mombasa seeking to nullify „the agreement.‟ The Maasai contested that the elders

who signed the agreement had no authority to alienate the interests of the young ones (minors)

and the unborn children. But the case and a subsequent appeal were dismissed as the court ruled

the agreement was actually a „treaty‟ between two „states‟ and that the court had no jurisdiction

to handle such cases. The Maasai did not give up. They planned to lodge a final appeal in

London. This was nipped in the bud when the protectorate quarantined the Maasai cattle when it

67 Navaya Ole Ndaskoi, „The roots causes of Maasai predicament.‟( 2006)

<http://www.galdu.org/govat/doc/maasai_fi.pdf> As at 13 December 2013. 68

Ibid. 69

The Agreement was prepared by the British colonialists on August 10,1904.It was signed on August 15,1904

between the British colonial government and the Maasai in Nairobi, the present day capital of Kenya. The Governor,

Sir Donald Stewart, represented the British while Olonana Ole Mbatiany „represented‟ the Maasai. 70

Supra note 19. 71

He signed the agreement on behalf of the Maasai claiming to be their leader.

http://www.galdu.org/govat/doc/maasai_fi.pdf

18

learned of efforts to sell cattle in order to raise money to file the case .It was clear that the

Maasai were losers.72

Since the signing of the aforementioned „agreements‟ the Maasais claims to their land have been

ongoing upto the present times. For instance white settlers still own large proportions of Maasai

land especially in Laikipia in the name of ranches. They have in recent times held

demonstrations on the ground that the said agreements had expired since 100 years had lapsed

since the signing of the controversial agreements and as such they should get their land back.

The irony is that the government has done little if any to address the situation at hand. For

instance the government responded by arresting several Maasais and the police reportedly killed

a Maasai when they demonstrated arguing that they wanted to maintain peace in the country in

addition to protecting private property.73

The situation is a clear manifest that the pre

independence governments have been a channel of Africanizing the colonial government.

2.2.4 DISPLACEMENT OCCASIONED BY LAND CLASHES.

Since the independence times and in the recent past there has been displacement of people which

has been instigated by land clashes. Even where prima facie the displacement can be said to be

occasioned by other factors such as political differences amongst communities, the root cause is

mostly perennial historical land injustices amongst the communities in Kenya and the political

pressure only acts as a precursor to the displacement. On this backdrop it has been observed:

We cannot blame all the conflicts that arose in the recent years as caused by the election rigging.

I am confident that our people (Kalenjins) go to violence whenever there is a loophole in the

protection of their land. Most of the violence experienced in the Rift Valley has resulted from

unresolved land ownership. Many hit back after they have been evicted and the inhabitants who

strongly claim the ancestral ownership of the same land protect it by all means, which of course

becomes violent.74

72 Ibid.

73 Supra note 66.

74 Kaberia Isaac Kubai, „Just Reconciliation: The Church‟s Response to Ethno-political Violence in Kenya.‟(2013)

<http://www.mf.no/doc//Dokumenter/2013/Disputaser/Kaberia%20Isaac%20Kubai%20PhD%20Dissertation,%202

013%20FINAL%20VERSION.pdf.> As at 15 December 2013.

http://www.mf.no/doc/Dokumenter/2013/Disputaser/Kaberia%20Isaac%20Kubai%20PhD%20Dissertation,%202013%20FINAL%20VERSION.pdf


19

This displacement has been witnessed in various parts of the country mostly in the Rift Valley

region where the Kalenjin community has always intended to evict the Kikuyu community who

they feel grabbed their land.

The displaced persons often lose all their properties and are obliged to start a new life without

perspective of safe return, resettlement, or compensation. If they are not hosted in isolated

camps, the internally Displaced Persons are usually landless and labeled as squatters or slum

dwellers. Usually in such living conditions they find it difficult to find a job or a source of

income to pay for medicine or the school fees for their children. Access to public health facilities

also becomes compromised. Basically their lives seem to have stopped.

The land clashes began to build up from the colonial times when customary land tenure was

destroyed by the colonial government in favor of private individual ownership of land. The

communal ownership was described as being timid and retrogressive.

The colonial government rubber stamped their individualization concept of land by enacting The

Registered Lands Act 75

whose sole purpose was to provide the legal framework for the extinction

of claims to individualized land based on African Customary land law.76

Upon independence the Kenyatta regime opted to inherit the colonial land regimes such as the

registered Land Act which had contributed massively to the disinheritance of Africans from their

land. In order to settle the Landless Africans who were living in the colonial reserves, the

Government introduced the Concept of Settlement Schemes.

One of the Most popular settlement schemes was The Million Acres Settlement Programme77

which was designed to embody three different schemes: low, medium and high density schemes,

catering for similarly different categories of farmers, but massive demand for land placed the

75 The Registered Land Act, Cap 300 of The Laws of Kenya.

76 Odenda Lumumba „Land –Related Conflicts in Kenya: Policy and Legal implications.‟

<http://www.pambazuka.org/en/category/comment/27620> at 15 December 2014. 77

It involved the promotion of a rapid and orderly transfer of ownership of European-owned farms belonging to

those settlers who wanted to leave or who otherwise could not stay after independence. The scheme was designed to

comprise small to medium size holdings covering a total of 1.15 million acres to be sold to individuals who would

be facilitated by a loan from the British government to buy out the departing settlers.

http://www.pambazuka.org/en/category/comment/27620

20

settlement authorities under intense political pressure such that the low density schemes gave

way to high density settlement.78

This resettlement programme instead of solving the problem of landlessness provided a basis for

inter-ethnic conflict. This was on the basis of the amount of land apportioned to the Kikuyu in

the Eastern part of the Rift valley province. About forty percent of total land set aside for

resettlement was allocated to the Kikuyu because they had been identified by the then

administration as the most land hungry and the most threatening group.79

The original inhabitants of the Rift had a feeling that they were short changed in the

aforementioned settlement programme and thus became resentful of the Kikuyu community

which was allocated around fourty percent of total land set aside for resettlement. This partially

explains why in the slightest opportunity such as political differences which often lead to

political violence the original inhabitants of the Rift Valley try to displace the Kikuyu and other

communities who are often referred to as „foreigners‟.

2.2.5 MINORITY COMMUNITIES AND THEIR CLAIMS TO LAND

In Kenya certain communities are culturally and economically dependent on specific

geographical areas and habitats for their way of lives. These are the minority communities which

include the Ogiek, the El Molo among others.

The Ogiek community is dependent on Forest habitats. With time they have lost their forest land

through governmental action. The Government either gazettes certain forest areas thus making

them public land80

or the areas have been allocated to individuals not ordinarily resident in the

area. Such individuals have acquired title to the lands in question. In some instances the forest

land has been occupied by other communities who are not ordinarily forest dependent.81

These other communities who are not necessarily forest dependent go ahead to destroy the

forests which in turn impedes the way of life of the Ogiek. The colonial land policies such as The

Registered Land Act have enabled other individuals to acquire the same forest lands which

78 Karuti Kanyinga, „Beyond the colonial legacy: The Land question, Politics, and Constitutionalism in Kenya‟ in

S.CWanjala: Essays on Land Law: The Reform Debate in Kenya (2000) at p 205. At p 55. 79

Ibid. 80

See Article 62(1) of The Constitution of Kenya, 2010. 81

Supra note 19.

21

belonged to the Ogiek community and thereby contributing to their oppression. On this backdrop

it is noteworthy that an Ogiek elder stated:

We have lost our land, identity and our moral values with the coming of Kipsigis (referring to

Kalenjins).They have polluted our clean water, they have cleared all our forests for farming and

they are now very busy digging our graves. Since I was born, I have never seen such a situation.

This is not what we expected in our motherland….they have taken our birthright and now we

have nowhere to call home and soon, we are going to become their slaves.82

The Ogiek community is the last remaining forest dwellers and the most marginalized of all

indigenous peoples and minorities in Kenya. They are traditionally honey gatherers who survive

mainly on wild fruits and roots, game hunting and traditional bee keeping and are therefore

friendly to their environment on which they depend. They were nicknamed the Dorobo which

was a derogatory term given to them by their neighbours, the Maasai. The term used to refer to

them correctly is „Ogiek‟ which means the care taker of all plants and wild animals.83

They have

been described as:

The Ogiek are uniquely specialized people intimately related to a particular ecosystem. They are

incapable of retaining their essential characteristics, if that eco system is destroyed. In the

beginning of the last century their ancestral lands were taken from them in a manner little

different from the seizure of The Native American hunting grounds in today United States of

America ,but with the difference that no Ogiek Reserves were retained. To this great injustice

has been added the effects of the forest policy that has progressively and on an immense scale

replaced their natural forests with conifer forests that are, to the Ogiek, totally sterile and

unproductive, useless for either bees or wild animals. Ironically and tragically, the employment

offered by the forest department makes them work for their own extinction .Every hectare of

plantation trees they plant is a hectare of their birthright lost forever.84

The predicament of the Ogiek concerning their land seems to have commenced in the pre

colonial times when the Maasais sought to take away their land. Precisely it was in 1856 when

82 Supra note 73.

83 Sang Joseph „The Ogiek in Mau Forest.‟(2001) Case study3

<http://www.forestpeoples.org/sites/fpp/files/publication/2010/10/kenyaeng.pdf> at 20 December 2013. 84

Ibid.

http://www.forestpeoples.org/sites/fpp/files/publication/2010/10/kenyaeng.pdf

22

they attempted to annexe Ogiek lands in Mau and Laikipia leading to a war between the two

tribes culminating to loss of a part of the land of the Ogiek.85

Later negotiations between the colonial masters and the Maasais started over the transfer of land.

These negotiations resulted to the signing of an agreement in 1911 which gave away land around

Nakuru, Naivasha and Laikipia to be settled by the white settlers. Some of this land belonged to

the Ogieks. The final nail on the coffin was in 1932 when another agreement was signed between

the Maasais and the colonial masters which gave out the Mau areas to the colonial settlers.86

After

the signing of the agreements, the Ogiek were forcefully evicted from their original habitats. This

marked the beginning of their extinction.

Because of their small population, minority communities have been prone to exploitation

whether it is by the government or other tribes who seek their land either for grazing, farming or

to carry out other economic activities. It has also been very difficult for them to voice their

predicaments because of their small population. The authorities including the Government to

have forgotten about them. On this back drop Towett J. Kimaiyo notes:

The Kenyan Government or the successive regimes for that matter are on records as having maintained a

clear, if unstated, policy to frustrate all efforts by the Ogiek to secure legal protection for their traditional

lands, culture, ethnic identity and language. This is all manifested in the way these regimes have handled

the community‟s plights and more particularly the land claims. Whereas the Ogiek wanted to be recognized

as distinct groups , the successive regimes sought the contrary, they went ahead to equate the community as

landless persons, a justification to nullify their God given rights. They have gone a long way to criminalize

their ways and modes of living, with a clear policy of assimilation, a sure road to any historical claims.87

2.2.6 THE SQUATTER PROBLEM.

The squatter problem has been a perennial problem in Kenya. It has its roots in the colonial times

and is a direct consequence of colonial land policy and laws. The disinheritance of land which

made the natives landless and ultimately squatters was well calculated by the Colonial masters.

85 Ibid , p 116.

86 Ibid , p 117.

87 Towett J. Kimaiyo, Ogiek Land Cases and Historical Injustices 1902- 2004 (2004).

23

Initially In 1901 The East Africa (Lands) Order in Council was passed which vested crown lands

in the whole of the protectorate in the commissioner and Consul- General and such other trustees

as might be appointed, to be held in trust for her majesty.88

Subsequently in 1902 the Commissioner promulgated the Crown Lands Ordinance which

provided for the outright sales of land and leases of ninety –nine years.89

It is noteworthy that the

land which was subject to the outright sales and leases of ninety nine years was the same land

that had been grabbed from the natives whom ironically had become squatters in their own land

since it had been taken away from then by the same British colonial masters.

The final nail on the coffin was in 1915 when the Crown Lands Ordinance redefined Crown

Lands so as to include that land that was occupied by native tribes and land reserved by the

governor for the use and support of members of the Native tribes.90

The Ordinance further

provided that the Africans had no right to alienate any of the land, whether they occupied it or it

was reserved for their use. This provision was judicially endorsed in the case of Wainaina vs

Murito91

where it was ruled that Africans or Natives could not hold any title to land. The same

ordinance also marked the genesis of private individual ownership of land in Kenya and the

extinguishing of communal ownership of land.

The dispossession of the natives from their land meant that only a massive resettlement

programme could provide a solution to the problem of landlessness. However, the negotiations

for independence were skewed in such a manner as to provide guarantees from the Nationalist

political leadership whereby white settler farmers who had opted to remain in the country could

retain their lands. The result was that many native peasants who had been displaced never got

back their land. The independence government led by Kenyatta opted to resettle the displaced

persons through the resettlement scheme, particularly the Million Acre scheme.92

The programme

would get land from the departing white settlers and then redistribute it to the natives.

88 Supra note 6.

89 Ibid.

90 Ibid.

91 Supra note 16.

92 Supra note 76.

24

However the settlement programme was coupled with limitations. Firstly it was based on free

market principle of „willing buyer-willing seller‟.93

This placed the landless poor at a

disadvantage. The British government would finance individuals in their quest to buy land from

the departing settlers. However the loan would only be granted to those individuals who would

provide security for the same. Thus politicians with power and money and loyalists who had

made their fortunes by being close to the colonial government, as well as businessmen with

liquid cash, managed to acquire thousands of acres. This process without doubt created new

African elite, which on the other hand left the penniless scrapping for the tiny pieces of land. 94

Secondly, the scheme was exploited by the political class and the provincial administration to

acquire large parcels of land to the detriment of the poor local inhabitants.95

From the foregoing it is evident that the majority of the people who were settled were not

necessarily the peasantry landless but others who had an advantage over them either by way of

political connection or by the virtue that they had accumulated cash through various economic

activities such as farming, small business ventures and wage employment.

It is thus crystal clear that the squatter problem still persists to this day .It is ironical that there are

individuals who own large parcels of land which even to some extent remain idle land yet there

are poor Kenyans who are still languishing in poverty in addition to being squatters in their own

country.

2.2.7 CONFLICTS BETWEEN NEIGHBOURING COMMUNITIES.

The wholesale alienation of land and the displacement of the African population brought about a

situation in specific areas in the country that has led to persistent conflict between neighboring

communities.

These neighboring communities usually clash over scarce resources such as water and pasture.

Some of the conflicts arise from different land uses. These conflicts have not been resolved

permanently. The potential for armed conflicts between communities has remained. This is the

93 Supra note 19.

94 Paul Syagga, „Public Land, Historical Land Injustices and the new Constitution‟ constitution working paper no.9

<http://www.fahamu.org/change/sites/default/files/Public%20Land%20working%20paper.pdf > at 18 December

2013. 95

Supra note 6.

http://www.fahamu.org/change/sites/default/files/Public%20Land%20working%20paper.pdf

25

case between the Marakwet, Pokot and Turkana in the North rift, Pokomo and Somali in the

Tana Delta, Kisii and Maasai in Transmara boarder and also between the various Somali clans in

the Northeastern part of the country.96

Pressure on water and land resources have increased greatly in recent years with increased

farming activities, rapid population growth and periodic drought.For instance among the pastoral

communities there are clashes over the available resources. For instance there are raids between

the Samburu and the Maasai and between the Samburu and the Pokot.

The armed conflicts usually result in many negative impacts in the regions. These negative

impacts include deaths, displacements and lack of economic development in the respective

regions.

2.3 IMPACTS OF THE HISTORICAL LAND INJUSTICES.

2.3.1 LANDLESSNESS.

Landlessness in Kenya is a problem that is synonymous with the Historical land injustices. It has

its roots from the colonial times. The main reasons and concerns of colonialism were economic

ones which mainly involved capital accumulation.

In their pursuit of the goal of capital accumulation they had to disinherit the Africans of their

land. They had to invent various means to achieve their goal of disinheritance of the Africans of

their land. This being the case, the declaration of protectorate status over Kenya by the British in

1895 was followed by a systematic and legal process of alienating large tracts of land and

dispossessing indigenous people of their land.97

This marked the genesis of the problem of

landlessness in the country. At one time even the courts ruled that the Africans were tenants at

the will of the crown.98

What followed was the settling of African natives into native reserves. The Africans in the

Native reserves would then provide labour to the Colonial settlers in return for wages which they

would then use to pay taxes to the colonial government.

96 Supra note 19.

97 Supra note 42.

98 Supra note 35.

26

The resettlement of Africans in the reserves resulted to massive landlessness especially in those

parts of Central and Western Kenya which were within the „White Highlands.‟99

Landlessness

led to poverty and discontent. As a result the spectre of organized political dissension in the

African areas started to loom.

At independence because the problem of landlessness had to be addressed, The British

government in association with the independent government embarked upon a programme of

purchasing land and availing the same to the landless.

The programme involved settlement holdings. Earlier, before 1962, there had been “the

independence bargain settlement schemes” on which quite a number of African farmers were

settled on holdings of some 200 acres each. But in the early years, settlement was carried out in a

hasty and unplanned manner.100

However the most elaborate of the schemes were „The Million Acres Settlement

Schemes.‟101

Through these schemes over a million people were settled on holdings ranging from

twenty five to fourty acres from 1962 through various categories:

The first category consisted of high density low income holdings of 25 acres each covering a

total area of 970,000 acres. The second category consisted of low density high income holdings

of 40 acres each, covering a total area of 180000 acres. The last category consisted of the so

called „z‟ holdings which were carved around the homesteads of former European farmers. They

were allocated to local politicians, urban workers and other leaders. The Million-Acre are to be

found in the Eastern, Central, Rift Valley, Nyanza and Western provinces in Kenya.102

The last category was „The Squatter Settlement schemes‟ which were embarked upon by the

Government in 1965. They were meant to settle squatters on abandoned and mismanaged

European farms. They consisted of small holdings of 10 acres each.103

99 This was the name given to those areas which were most suitable for and occupied by the white settlers.

100 Supra note 42 at p 32.

101 Supra note 87.

102 Supra note 95.

103 Supra note 42 at p 33.

27

Despite all the above measures of settling the landless using various holdings the problem of

landlessness still persists. The independence government committed a grave sin by adopting the

colonial laws which had legalized the illegitimate alienation of the Natives land by the

colonialists and thereby aggravating the problem of landlessness.

To date this problem manifests its self through various ways which form what is now referred to

as historical land injustices. For instance the squatter problem is as a result of landlessness, when

there are ethnic clashes they result to landlessness, minority communities such as the Ogiek

plights are mainly loss of land, the coastal land problem has made people in that region to be

landless, The Nubian community as discussed earlier are losing their land progressively because

of lack of titles to their land resulting to the problem of landlessness.

2.3.2 ILLEGAL AND IRREGULAR ALLOCATION OF LAND.

The alienation of the native land by the colonial masters marked the onset of the illegal and

irregular allocation of land. The colonial government allocated the native land to white settlers

which was in fact illegal. This phenomenon was thought to change with the ushering in of

independence but ironically it took another turn. It is a practice that has been well executed by

the elites of the country who include politicians and those that are well connected with them.

These activities have been facilitated by the highly centralized nature of Kenya‟s land

administration and management system, initially introduced by the colonial administration.

When Kenya gained her independence in 1963, it inherited a highly unequal land distribution

pattern that disadvantaged the African population in terms of ownership over productive land.

This has resulted in pressing questions about land distribution and reform strategies up to the

present day.104

The inhabitants of those productive lands who were the white settlers had already

acquired title to the same lands that were in question.

Due to the blatant irregularities in National Land Administration, there was set up The

Commission of Inquiry into the Illegal/ Irregular Allocation of Public land.105

The vice that led to

its creation is well captured in the preamble of the Gazette Notice that established the

commission. It states:

104 Supra note 1.

105 Supra note 22.

28

Whereas it appears that lands vested in the Republic or dedicated or reserved for public purpose

may have been allocated by corrupt or fraudulent practices or other unlawful or irregular means,

to private persons, and that such lands continue to be occupied contrary to the good title of the

Republic or in a manner inconsistent with the purposes for which such land were respectively

dedicated or reserved.

This commission of inquiry-commonly known as the Ndung‟u Commission after its chairperson,

Paul Ndung‟u- completed and submitted its report, which was made public in December

2004.The shocking report was that there was a serious crisis in the management of Kenya‟s land,

which was being illegally and/or irregularly parceled off to well-connected individuals.106

Although the Ndung‟u Commission Report made a number of recommendations concerning the

revocation of title deeds and remedies for illegal/irregular activities involving public land, with

the exception of few high profile revocations and repossessions, it has thus far had limited

impact on the phenomenon of land grabbing.107

However there has been piecemeal implementation of the recommendations of the Ndung‟u

Commission Report‟s findings-mainly focusing on the evictions or land repossessions of

minority groups from protected areas and a handful of high-profile repossessions- has not

addressed the bulk of the illegal and irregular land allocations in Kenya. The selective

implementation of these recommendations will continue to deepen tensions, among the most

dangerous of which are ethnic tensions resulting from unequal land distribution through

questionable land administration practices, thereby continually undermining Kenya‟s fragile

state.108

2.4 CONCLUSION.

From the foregoing it is evident that historical land injustices are synonymous with the colonial

administration either through the mass disinheritance or the colonial land policies that sought to

legitimize the illegal mass disinheritance.

106 Supra note 1.

107 Ibid.

108 Supra note 1.

29

This mass disinheritance of communities of their land has led to land grievances that have not

been resolved to date. The failure of the independence regime to address the mass disinheritance

of land and its further neglect by the post independence governments perpetuated historical land

injustices to the detriment of the majority of the Kenyan population.

It is then paramount that a permanent solution to the thorny issue of historical land injustices be

found. It is on this backdrop that the next chapter will entail examining the potential of the

current legal framework on land in solving the acute problem of historical land injustices.

30

CHAPTER THREE

3.1 EXAMINING THE POTENTIAL OF THE NEW LAND LAWS IN SOLVING THE

PROBLEM OF HISTORICAL LAND INJUSTICES.

3.2. INTRODUCTION.

Land issues have remained emotive, contentious and an obstacle to social cohesion and

economic growth since the period when Kenya was under colonial rule. An ineffective

regulatory framework has been at the root of many problems, including claims of historical land

injustices among some communities, proliferation of unplanned urban settlements, bad land use

practices and human-wildlife land use conflicts. Additional serious aspects of the land issue have

been environmental degradation, uneconomic land subdivisions, unjust land distribution and

other land related problems. One result of all this has been increased poverty among some

communities.109

Land grabbing has been at the centre of the problem of historical land injustices. This

phenomenon of land grabbing has its roots in the colonial times when the colonial masters came

and settled in Kenya. Their main goal was to accumulate capital and in pursuit of that goal they

had to disinherit the Africans of their land. They had to invent various means to achieve their

goal of disinheritance of the Africans of their land. This being the case, the declaration of the

protectorate status over Kenya by the British in 1895 was followed by a systematic and legal

process of alienating large tracts of land and dispossessing indigenous people of their land.110

The

result of the alienation of the land of the African natives was massive landlessness which was

occasioned by a historical land injustice of disinheritance perpetuated by the colonial masters.

Further the concept of land grabbing and illegal allocation of public land advocated by the

independence and post independence governments has brought about the modern version of

landlessness in the country. It is on this note that the Truth and Justice Reconciliation

Commission noted in its report that land related injustices take many forms among them illegal

alienation of public land and trusts land.111

It is noteworthy that the previous Government

109 Supra note 93, at p 1.

110 Supra note 42.

111 Report of The Truth Justice and Reconciliation Commission, Para 246.

31

established The Commission of Inquiry into the Illegal/ Irregular Allocation of Public land112

to

investigate the vice of illegal and irregular allocation of public land.

Upon independence the natives were optimistic that the problem of landlessness would be

resolved once for all. To their surprise the independence government did little to alleviate the

problem of landlessness. Where efforts were made to alleviate the problem by providing land to

resettle the landless poor, the same land did not as supposed fall into the hands of the landless

poor, rather it either fell in the hands of politicians who had power and money and loyalists who

had made fortunes by being close to the colonial government as well as business men who had

lots of liquid cash. As a result the landless poor still remained landless. This was the case with

the One Million acre scheme which was meant for the poor landless but it could only be

allocated based on the principle of „willing buyer-willing seller‟113

The independence government committed a grave sin by inheriting the land laws which were

being used by the colonial government to legitimize the alienation of the land that belonged to

the natives. For instance The Government Land Act114

was enacted to replace the Crowns Land

Ordinance 115

which had redefined crown‟s land so as to include land occupied by native tribes

and land reserved by the governor for the use and support of members of the native tribes.116

The

ordinance went further to make it clear that the Africans had no right to alienate any of the land

whether they occupied it or it was reserved for their use.117

This Crowns Land Ordinance marked

the onset of private individual ownership of land. It also marked the disinheritance of Africans

from their land.

The retention and the entrenchment of the colonial laws and policies relative to land rights

legitimized dispossessions of the original owners of the lands. This retention has seen the

Kenyan Legal framework favouring and protecting legal title holders. For instance registered

land owners acquired an absolute and indefeasible title to land unless such land was obtained by

112 Supra note 22.

113 Supra note 19.

114 Government Land Act, Cap 280 , Laws of Kenya.

115 The Crowns Land Ordinance of 1915.

116 Supra note 15.

117 Supra note 16.

32

fraud or mistake and subject only to encumbrances.118

This has pitted the original inhabitants of

those lands in a war with the legal title holders who occupy the same lands. The original

inhabitants based their claims on African Customary laws but the 1963 constitution of Kenya

placed African Customary law at the subordinate of all the written laws and its application was

limited by the repugnancy clause.119

Further, the Independence regime and the subsequent regimes save for the current regime

adopted the highly centralized and essentially top-down approaches to land administration and

management which had been introduced by the colonial government. This centralized approach

aided the political class and well connected persons to the political class in grabbing land which

further enhanced the problem of landlessness. Further the inheritance of the colonial land laws

aggravated the situation. Thus the problem of historical land injustices has been in place since

the colonial times.

It is the enactment of the current land laws that has provided some light at the end of the tunnel

bringing hope to the rather hopeless situation that the problem of historical land injustices may

be solved. Mwathane notes that for us all, the National Land Policy, the constitutional and legal

opportunities now available should provide hope and that in the fullness of time, historical land

injustices will be resolved.120

This chapter will embark on examining the potentiality of the

current land laws in resolving the problem of historical land injustices.

3.3. THE LEGAL FRAMEWORK ON LAND THAT EXISTED BEFORE THE

ENACTMENT OF THE NEW LAND LAWS.

3.3.1 THE CONSTITUTION OF KENYA, 1963.

At independence, all existing land rights of foreigners were explicitly recognized by the

constitution irrespective of how they had been acquired. The initial equivalent of section 75 of

118 Registered Land Act, Cap 300, Sec 27, Laws of Kenya.

119 Sec 115 (2), Constitution of Kenya, 1963.

120 Mwathane Ibrahim, „ Why the MRC should use extant legal provisions to resolve Coast Land issues‟ Daily

Nation, 28 October 2012

<file:///E:/chapter%203/Why%20the%20MRC%20should%20use%20extant%20legal%20provisions%20to%20reso

lve%20Coast%20land%20issues%20-%20Opinion%20-%20nation.co.ke.htm> at 20th

January 2014.

file:///E:\chapter%203\Why%20the%20MRC%20should%20use%20extant%20legal%20provisions%20to%20resolve%20Coast%20land%20issues%20-%20Opinion%20-%20nation.co.ke.htm


33

the constitution of Kenya, 1963 therefore stepped in to buttress the protection of the property

rights guaranteed by the settlement at the Lancaster and Nairobi independence negotiations.121

Section 75 provides that no property of any description shall be compulsorily taken possession of

except in instances where it is for the interest of defence, public safety among others .This was

skewed to protect the colonial settlers who had acquired land from the natives through

unorthodox means. This phenomenon ensured that the natives who were landless continue to be

landless.

Chapter IX on Trust Land aims at laying down machinery for the adjudication of land in which

members of an ethnic community reside. The chapter gives guidelines on how the land will be

individualized in favour of its ethnic residents.122

Only sections 75 on protection from deprivation of property of any kind and sections 114-120 on

Trust land concerned land rights in the previous constitution. It addressed land rights narrowly .It

is even more ironical that the supreme law of the land was at the forefront in aiding the further

alienation of the natives‟ land thereby contributing to the historical land injustices that were

facing the natives.

3.3.2 THE GOVERNMENT LAND ACT.

This Act was a replacement of the 1915 Crown Lands Ordinance. The object of its enactment

was to make further and better provisions for regulating the leasing and other dispositions of

Government Land and related issues.123

Under this Act, only the president had the power of signing documents granting title. The

president was also empowered to delegate his powers to the Commissioner of lands. The Act laid

down the procedures that the commissioner of lands would follow in allocating land.124

121Kivutha Kibwana, „The Land Question, The Current Constitutional framework and proposed changes.‟ in

S.CWanjala: Essays on Land Law: The Reform Debate in Kenya (2000). 122

Ibid. 123

Supra note 6. 124

Supra note 6.

34

The Act governed all freeholds and leasehold interests granted by the government prior to 1920,

with the exception of leaseholds converted to 999 years or to freeholds under the Registration of

Titles Act.125

3.3.3 THE REGISTRATION OF TITLES ACT.

Was enacted in 1920 whereupon all successfully claimed plots were registered under it. This Act

was registered principally for the purpose of improving the issuance of titles to land as well as

regulating transactions in the same. It was modeled upon the Registration of Title enactment of

the Federal Republic of Malaya and the Transfer of Land Act, 1890 of Victoria.126

This Act relates to all land granted by the Government or subject to the Certificates of

Ownership, mortgage or interest issued by the Recorder of Titles under the Land Titles Act.127

It also applied to all leaseholds which had been converted from 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, or Land Titles Registration to Registration of Titles Act titles.128

3.3.4 THE LAND TITLES ACT.

This Act emanated from the Land titles Ordinance and was enacted in 1908 for purposes of

facilitating alienation of Crown Land at the Coast. The colonial Government needed to

distinguish between private land and Crown land situate within the ten mile coastal strip.129

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 the title adjudicated.130

The titles issued under the LTA did not create new rights, they only confirmed existing rights

thus they did not in any way pertain to Government grants. Further, under the LTA, the Registrar

was known as the “Recorder of Titles” and the procedure of adjudicating private claims to land

125 Ibid.

126 Ibid.

127 The Land Titles Act, cap 282, Laws of Kenya.

128 The Registration of Titles Act, cap 281, Laws of Kenya.

129 Supra note 6.

130 Ibid.

35

was borrowed from an Act of Ceylon.131

In the event that any plot was not successfully claimed

by private individuals it was vested in the colonial government and upon independence, in the

Kenya Government.

3.3.5 THE INDIAN TRANSFER OF PROPERTY ACT.

It was enacted to deal with the transacting in the interests in land which had been derived from

the registration statutes. This Act was applied in Kenya as a substantive law, principally for the

purpose of catering for the interests of the European Settlers.132

The shortcoming of The Indian Transfer of Property Act was that it was neither a registration

nor a conveyancing statute and as such there was need to enact another statute to substantively

deal with the aforementioned issues of registration and conveyancing. This informed the

enactment of The Registered Land Act.133

3.4. THE CURRENT LEGAL FRAMEWORK ON LAND AND ITS POTENTIALITY IN

RESOLVING THE PROBLEM OF HISTORICAL LAND INJUSTICES.

3.4.1 THE CONSTITUTION OF KENYA, 2010.

The dawn of a new era set in on August 27, 2010 when the much awaited Constitution was

promulgated. The constitution of Kenya 2010 has not only ushered in a new set of national

values, bill of rights but has also entrenched a land and environment chapter among other things.

This entrenchment of land and environment chapter stresses the importance of land and further

takes into consideration of what was pointed out in the Njonjo Commission that land is a central

category of property in the lives of Kenyans and as such requires special treatment in the

constitution. 134

This in contrast with the independence constitution which did not have an

exclusive chapter on land save for that on Trust Land. The current constitution has provided hope

in the resolution of past historical injustices on land.

Firstly, the constitution provides that Land in Kenya shall be held, used and managed in a

manner that is equitable, efficient, productive and sustainable, and in accordance with principles

131 Ibid.

132 Ibid.

133 Ibid.

134 Supra note 2.

36

it prescribes.135

The principle of equity will ensure that there is some equitable distribution of

land. The constitution further provides that the principles shall be implemented through a

national land policy which will be developed and reviewed regularly by the national government

and through legislation.136

In tandem with the constitution, Parliament has embarked on a process

of developing a comprehensive land policy that will comprise the principles set out in the

constitution. This Policy will go a long way in aiding the resolution of historical land injustices

for instance in ensuring that there is an equitable access to land.

Secondly the Constitution provides that all land in Kenya belongs to the people of Kenya

collectively as a nation, as communities and as individuals.137

On this light the constitution

proceeds to classify land as public, community or private.138

The constitution goes further to define community land to include land that is lawfully held,

managed or used by specific communities as community forests, grazing areas or shrines;

ancestral lands and lands traditionally occupied by hunter gatherer communities. This is a major

breakthrough for minority communities such as The Ogiek who depend on forests for their

livelihoods. These communities have been prone to threats of eviction by the authorities and

through government action such as gazzetment. With the current constitution, their right to

inhabit those areas that they deem to be their original habitats can be said to be protected.

The constitution also provides that a person who is not a citizen may hold land on the basis of

leasehold tenure only and that any such lease however it has been granted shall not exceed ninety

nine years.139

In addition to this, it goes further to provide that if any provision of any agreement,

deed, conveyance or document of whatever nature purports to confer on a person who is not a

citizen an interest in land greater than a ninety nine year lease, the provision shall be regarded as

conferring on the person a ninety nine year leasehold interest and no more than that. This

provision will help solve some of the historical land injustices as well as preventing others from

arising. For instance in the Maasai case where an agreement was concluded between the „

135 Supra note 33.

136 See Article 60(2),Constitution of Kenya, 2010.

137 Article 61(1), Constitution of Kenya,2010.



37

Maasai‟ and the British colonial masters transferring the Maasai land to the British on a 999

years leasehold. Using this article, this agreement can be interpreted as being void.

One of the major hallmarks of the constitution in its quest to resolve historical land injustices is

the establishment of the National Land Commission.140

One of the major functions of The

National Land Commission is to initiate investigations, on its own initiative or on a complaint,

into present or historical land injustices and then recommend appropriate redress.141

This is a

major breakthrough in the quest to resolve historical land injustices that have been synonymous

with the growth of Kenya. From the provision it is clear that investigations on historical land

injustices can be initiated upon a complaint by an individual or a group of persons or upon the

own initiative of the National Land Commission. Thus individuals or even communities that

have been faced with past historical land injustices can complain to the National Land

Commission which will upon such a complaint initiate investigations into such historical land

injustices and will then recommend appropriate redress.

As earlier discussed in the previous chapter, the British colonial masters disinherited the natives

of their land leaving them landless. They later formulated legislations to legitimize that

alienation. Upon independence the dreams of the Africans of getting their grabbed land back

were shattered upon the independence government retaining and entrenching the colonial land

laws. The independence government warranted this retention by indicating that its hands were

tied by the Independence constitution. Land could not just be acquired and redistributed to the

landless Africans without full and prompt compensation of the persons who held the legal titles

to those lands who were the settlers. This position aggravated the situation and rubber stamped

the historical land injustice of landlessness which has been facing various communities in Kenya

such as the Maasai. But with the establishment of The National Land Commission which has

subsequently been empowered to investigate complaints of historical land injustices by

individuals or communities, those communities that have been faced with past injustices of land

now have a channel of lodging their complaints.

140 Article 67(1), Constitution of Kenya, 2010.

141 Article 67 (2) (e), Constitution of Kenya, 2010.

38

The National Land commission is also empowered to recommend a national land policy to the

national government. In this policy the National land commission may make recommendations

on various matters concerning the historical land injustices. For instance it can recommend on

the various historical land injustices and the various ways of redressing those historical land

injustices.

Further the National Land Commission is empowered to advise the national government on a

comprehensive programme for the registration of title in land throughout Kenya. In doing this

The National Land Commission may take into consideration historical land injustices like how

the original titles were acquired vis-à-vis the claims of ownership of the same lands by the

original inhabitants who claim to have been disinherited of those lands by the colonial masters

and later their complete disinheritance through the colonial land laws which were retained and

entrenched by the independence government and later the subsequent regimes save for the

current regime.

The historical land injustice of illegal and irregular allocation of public land was not only

assisted by government officials but they also played a major role in some of the cases in which

fraud had taken place because the Government was the sole institution empowered to hold land

in trust for the citizens in Kenya and also managed and administered it solely. This phenomenon

of illegal and irregular allocation of public land is to change because the management and

administration of public land is not in the hands of the Government but with an independent

institution, The National Land Commission which has been empowered by the constitution of

Kenya 2010 to administer public land on behalf of the People of Kenya whether in the counties

or in the country.142

The constitution also provides that parliament shall establish a court with the status of the High

Court to hear and determine disputes relating to the environment and the use and occupation of,

and title to, land.143

This is another big step towards the resolution of historical land injustices.

Thus communities which have historical claims of titles of certain parcels of land can lay their

claims in this court to determine their fate.

142 Article 62 (2)(3), Constitution of Kenya,2010.

143 Article 162(2)(b) , Constitution of Kenya, 2010.

39

Parliament is further empowered by the constitution to enact legislation that will prescribe

minimum and maximum land holding acreages in respect of private land.144

This will definitely

go a long way in ensuring equitable access to land. The proponents of this argue that due to the

fact that the largest consolidated quantities of land in Kenya are either in the hands of non-

indigenous Kenyans or the corporations that are not significantly owned by Kenyans, it might be

in the national interest for the Government to set limits above which no individuals may own

land .Essentially, the argument is that it is inequitable for some to own land in the thousands of

acres while the rest are squatters. The colonial matter only gets to be related to the problem of

land because colonialism involved appropriation of significant quantities of land that were never

returned by the government to the original owners upon independence.145

It does not augur well

in situations where some few elites own big chunks of land and at the same time other citizens

are squatters. Further the problem of absentee land owners146

as observed in the coastal land

problem will be checked.

The constitution further empowers parliament to enact legislation so as to enable the review of

all grants or dispositions of public land to establish their propriety or legality. 147

This will

definitely go a long way in tackling the historical land injustice of illegal and irregular allocation

of public land.

Finally the constitution provides that on the effective date, any freehold interest148

in land in

Kenya held by a person who is not a citizen shall revert to the Republic of Kenya to be held on

behalf of the people of Kenya, and the state shall grant to the person a ninety-nine year lease at a

144 Article 68(c) (i), Constitution of Kenya, 2010.

145 The Point, „Reassessing Kenya’s Land Reform,‟ Bulletin of the Institute of Economic Affairs, Issue No.40

(2000). 146

Refers to:

a) Entities whose land is under occupation or use by others but who themselves are not regularly in residence or

supervision of the land;

b) Entities whose conduct amounts to abandonment of the land. In this case periodicity in relation to absence is

important in determining the fact of abandonment; and

c) Owners of land along the Coast of Kenya who seldom use the land of which they are the registered owners;

such land, where managed at all, being ordinarily under agents who may or may not have been validly appointed by

the registered owners. 147

Article 68(c) (v), The Constitution of Kenya, 2010. 148

Freehold interest connotes the largest quantity of land rights which the State can grant to an individual. While it

confers unlimited rights of use, abuse and disposition, it is subject to the regulatory powers of the State.

40

peppercorn rent.149

This without doubt will help in restitution of the land that was alienated by the

colonialists and later legitimized by the laws that were enacted by the colonialists

3.4.2 THE LAND ACT, CAP. 280, LAWS OF KENYA.

This is an Act of parliament enacted in tandem with the constitution of Kenya,2010.It is an Act

of Parliament enacted to give effect to Article 68 of the Constitution ,that is; to revise,

consolidate and rationalize land laws; to provide for the sustainable administration and

management of land based resources, and for connected purposes.150

This legislation has various provisions that will aid in resolving the problem of historical land

injustices. Firstly the Act requires The National Land Commission and any State officer or

public officer in the discharge of their functions and exercise of their powers under the Act to be

guided by various values and principles which include equitable access to land; non-

discrimination and protection of the marginalized inter alia.

The Act further requires the Cabinet secretary of land in so far as it concerns the management

and administration of land; to develop policies on land upon the recommendation of the

commission and to facilitate the implementation of land policy and reforms.151

One of the major provisions of the Land Act which will go a long way in resolving one of the

main forms of historical land injustices in squatter problem is the establishment of settlement

schemes.

The Act empowers the National Land Commission on behalf of the national and county

governments to implement settlement programmes to provide access to land for shelter and

livelihood.152

The Act goes further to provide that the settlement programmes shall include but

not limited to provision of access to land to squatters, persons displaced by internal conflicts

among others.153

149 See Schedule 6, section 8 of The Constitution of Kenya, 2010.

150 Preamble, The Land Act, Cap. 280, Laws of Kenya.

151 Sec 6(a) &(b). The Land Act Cap 280, Laws of Kenya.

152 Sec 134.(1). Ibid.

153 Sec 134 (2). Ibid.

41

It goes further to provide that the identification of the beneficiaries shall be carried out and

verified by a sub county selection committee.154

The Act also requires the National Land

Commission to reserve public land for the establishment of approved settlement programmes,

and that where public land is not available, purchase private land subject to the public

Procurement and Disposal Act.155

Finally the Act establishes The Land Settlement Fund which shall be administered by The

National Land Commission.156

The fund will be funded from various sources such as money

appropriated to it by Parliament, donations from bilateral and multilateral donors, gifts, grants

among others.

The Land Settlement Fund shall be applied for various purposes among them Provision of access

to land to squatters, displaced persons, purchase of private land for settlement programmes and

provision of shelter and a livelihood to persons in need of settlement programmes.157

From the foregoing it is clear that the Act will go a long way in solving the perennial problem of

squatters if the provisions of the Act are put into effect.

3.4.3 THE NATIONAL LAND COMMISSION ACT, CAP. 5D, LAWS OF KENYA.

It is an Act of parliament to make further provision as to the functions and powers of The

National Land Commission, qualifications and procedures for appointments to the Commission;

to give effect to the objects and principles of devolved government in land management and

administration, and for connected purposes.158

The commission is empowered in the execution of its functions under the constitution in Article

among them to initiate investigations, on its own initiative or on a complaint, into present or

historical land injustices, and recommend appropriate redress to gather by any such means as it

considers appropriate, any relevant information from any source, including any State Organ, and

to compel the production of such information where it considers necessary.159

From this it is clear

154 Sec 134 (4). Ibid.

155 Sec 134 (5). Ibid.

156 Sec 135 (1). Ibid.

157 Sec 135 (3) (a) (b) & (d), The Land Act, Cap 280.

158 Preamble, The National Land Commission Act, Cap 5D, Laws of Kenya.

159 Sec 6(2) (a), The National Land Commission Act, Cap 5D.

42

that in the conduct of investigations on historical land injustices, the National land commission is

empowered to compel production of any information that would be relevant in the dispensation

of its function to investigate and recommend redress on historical land injustices.

The National Land Commission is also empowered to conduct inquiries for the purposes of

performing its functions under the Act. Thus in the conduct of its function to investigate and

recommend appropriate redress concerning historical land injustices, the commission can

provide a platform for the aggrieved communities to air their grievances concerning the same.

Further the Act empowers the National Land Commission, within two years of its appointment,

to recommend to parliament appropriate legislation to provide for investigation and adjudication

of claims arising out of historical land injustices for the purposes of Article 67(2) (e) of the

Constitution of Kenya.160

Without doubt this is a major breakthrough in the pursuit of justice to

the communities which have been suffering as a result of past historical land injustices.

The National Land Commission is also empowered under Article 68 (c) (v) of the Constitution of

Kenya, 2010, within five years of the commencement of the National Commission of Land Act

to either on its own motion or upon a complaint by the National or a County government, a

community or an individual, review all grant or dispositions of public land to establish their

propriety or legality.161

Where it finds that the title was acquired in an unlawful manner, the

Commission shall, direct the Registrar to revoke the title.162

And where the Commission finds

that the title was irregularly acquired, the Commission shall take appropriate steps to correct the

irregularity and may also make consequential orders.163

If the above provisions are observed,

then the problem of land grabbing of public land which has been perennial in Kenya will be

resolved.

160 Sec 15, The National Land Commission Act, Cap 5D.

161 Sec 14 (1). Ibid,

162 Sec 14 (5). Ibid,

163 Sec 14 (6). Ibid,

43

3.4.4 THE LAND REGISTRATION ACT, CAP. 300, LAWS OF KENYA.

It is an Act of Parliament that has been enacted to revise, consolidate and rationalize the

registration of titles to land, to give effect to the principles and objects of devolved government

in land registration and for connected purposes.164

The Act provide that the certificate of title issued by the Registrar upon registration, or to a

purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as

prima facie evidence that the person named as the proprietor of the land is the absolute and

indefeasible owner, subject to the encumbrances, easements, restrictions and conditions

contained or endorsed in the certificate, and the title of that proprietor shall not be subject to

challenge ,except inter alia where the certificate has been acquired illegally, unprocedurally or

through a corrupt scheme.165

3.4.5 ENVIRONMENT AND LAND COURT ACT, CAP. 12A, LAWS OF KENYA.

It is an Act of Parliament that has been enacted to give effect to Article 162(2) (b) of the

constitution of Kenya, 2010; to establish a superior court to hear and determine disputes relating

to the environment and the use and occupation of, and title to, land, and to make provision for its

jurisdiction, functions and powers, and for connected purposes.166

The court has both original and appellate jurisdiction to hear and determine all disputes in

accordance with Article 162(2)(b) of the Constitution and with the provisions of the

Environment and Land Court Act or any other law applicable in Kenya relating to the

environment and land.167

In the exercise of its jurisdiction under Article 162(2) (b), the Court shall have power to hear and

determine disputes relating to title, public land inter alia.168

From this it is evident that if there

has been fraudulent acquisition of titles with respect to public land the court is mandated to hear

and determine disputes relating to that title and the public land. Therefore this court in the

exercise of its jurisdiction to hear and determine disputes relating to title of public land it will go

164 Preamble, The Land Registration Act, Cap 300, Laws of Kenya.

165 Sec 26(1), The Land Registration Act, Cap 300,Laws of Kenya.

166 Preamble of The Environment and Land Court Act, Cap. 12A, Laws of Kenya.

167 Sec 13 (1), The Environment and Land Court Act, Cap. 12A, Laws of Kenya.

168 Sec 13 (2). Ibid.

44

a long way in resolving the historical land injustice of illegal and irregular allocation of public

land.

3.5 BILLS.

3.5.1 THE EVICTIONS AND RESSETLEMENT PROCEDURES BILL, 2013.

It is a bill, if enacted into law, will help solve some of the historical land injustices particularly

the plight of minority communities such as the Ogiek who a rendered landless through

government action that sometimes is unfair or even when it is justified, other communities or

persons in turn are allocated the same lands that were gazetted by the government and declared

public land.

The bill provides that a person shall not be evicted from their home or have their property

demolished without following the procedures under the Bill.169

If the procedures are not followed

the person violating those procedures will be liable to a fine not exceeding two million Kenya

shillings or an imprisonment not exceeding five years.170

Under Section 10, the Bill requires the national and county governments to take appropriate

strategies, policies and programmes to ensure effective protection of individuals, groups and

communities against unlawful evictions and its consequences.171

Thus communities such as the

Ogiek now have recourse against the unlawful evictions. Further even in the instances of

unlawful occupiers, the Bill requires the authorities such as the Government to take into account

the Rights and Freedoms of those persons as guaranteed by the Constitution of Kenya, 2010.172

Moreover the Bill requires in instances where evictions are to be conducted with respect to

public land that consultations be conducted between The National Land Commission and the

representatives of the affected persons.173

Public hearings shall be conducted that will provide the

affected persons with an opportunity to challenge the eviction decision, present an alternative

proposal or articulate their demands and development priorities.174

From the foregoing it is

evident that the minority communities who have been subject to arbitrary evictions by the

169 Sec 7 (1), The Draft Evictions and Resettlement Procedures , 2013.

170 Sec 7(2), Ibid.

171 Sec 10, Ibid.

172 Sec 12, Ibid.

173 Sec 13(1), Ibid.

174Sec 13(2),Ibid.

45

authorities will have an opportunity to present their case against the evictions if the bill is

enacted unlike in the past where the law completely disregarded them.

The National Land Commission is also required to ensure that persons are provided with

appropriate settlement where the evictions are deemed lawful and where the persons evicted are

rendered homeless.175

This will ensure that the evicted persons are not left homeless and landless.

3.6 THE PROBABILITY THAT THE NEW LAND LAWS MAY NOT RESOLVE THE

PROBLEM OF HISTORICAL LAND INJUSTICES.

From the foregoing discussion on the probability of the new land laws in resolving the problem

of historical land injustices it is evident that the new land laws finally provide hope that in the

fullness of time that bottleneck will be resolved. But it is wrong to wholly assume that the

problem will actually be resolved.

Firstly there must be the political will by the executive and the legislature to put into effect the

various provisions of the land chapter entrenched in the constitution. For instance the legislation

to prescribe the minimum and maximum land holding acreages in respect of private property.

The hope provided by the current legal framework may be watered down if the political will to

put into effect the provisions of that legal framework is not there.

There is also a problem that many Kenyans who are in influential positions of leadership today

have hardly any idea what historical land injustices are all about. They were born, bred, schooled

and have worked in post independent Kenya, Some therefore do not quite understand how

anyone can stake communal claim to modern Nairobi, Mombasa, Nakuru or Eldoret.176

Further,

the urban and rural investments which drive the economy have happened without regard to

outstanding claims of unjustly acquired land in various parts of Kenya which in turn complicates

the matter.

Further The National Land Commission Act prescribes that the Commission must within two

years of its appointment recommend appropriate legislation to parliament to provide for the

investigation and adjudication of claims arising out of historical land injustices. However on this

175Sec 18 ,Supra note 169.

176 Mwathane Ibrahim, “ Resolve Historical Land Injustices” Business Daily, 9

th September 2013,at p 14.

46

neither the National Land Commission Act neither the Constitution obliges parliament to pass

the recommended legislation within a specific timeline.177

This may hinder the resolution of the

historical land injustices that have been a constant problem in the country as that leeway can be

exploited to delay the enactment of the relevant legislation.

There is also the problem that those who have benefited from the historical land injustices such

as illegal and irregular allocation of land or as a result of their political connections with the

independence Government they amassed large tracts of land which belonged to the natives are in

powerful positions in the Government. They may inhibit the passage of laws or the working of

The National Land Commission and therefore hindering the potential of the current legal

framework in its quest to resolve historical land injustices.

177 Ibid.

47

CHAPTER FOUR.

4.0 CONCLUSION AND RECOMMENDATIONS.

4.1 CONCLUSION.

The discussions in this discourse have centered on the alienation of the land that belonged to the

native Africans in Kenya by the White settlers in the pre independence times who later enacted

laws and policies that legitimized the grabbing of the natives land. It is this disinheritance of the

natives land that precipitated into the various forms of historical land injustices among them the

coastal land problem, displacement of people occasioned by violence, the Nubian land question,

minority communities and their claims to land, the squatter problem and the clashes between

neighboring communities.

With the realization of independence, the natives were hopeful that they could get their land

back. However rather than alleviating the situation, the independence government exacerbated

the situation by retaining and entrenching the colonial laws and policies which had legitimized

dispossessions of the original owners of their lands. It is this retention that has seen the Kenyan

Legal Framework favouring and defending legal title holders, for instance registered land owners

acquired an absolute and indefeasible title to land except where such land was obtained by fraud

or mistake and subject only to encumbrances.178

This has rutted the original inhabitants of those

lands in a war with the legal title holders who occupy the same lands. The Original inhabitants

based their claims on African Customary laws but the 1963 constitution of Kenya placed African

Customary law at the subordinate of all the written laws and its application was limited by the

repugnancy clause.179

The independence government furthered the concept of alienating public land that belonged to

the Africans through the concept of illegal and irregular allocation of land. Firstly land that was

availed by the independence government to settle the landless African natives fell into the hands

of a few who had money to buy it or had political connections with the Government. This was

the case with the Million Acre scheme. Secondly the concept of grabbing of public land was

aided by the fact that the administration and management of land was very centralized with the

178 Supra note 118.

179 Supra note 119.

48

president empowered to allocate public land. The president then delegated his powers to the

commissioner of lands who would enhance the illegal and irregular allocation of land. The

provincial administration also played a role in the illegal and irregular allocation of public land.

On this backdrop Kamau notes:

After independence, President Kenyatta issued a quiet decree on the acquisition of beach plots and what

came to be known as second-row plots. Only Coast Provincial Commissioner, Eliud Mahihu could identify

and recommend those qualified for these plots. The reality was that those who earned Mahihu‟s favour

were highly placed political and civil service elites and their business associates. Mahihu used his position

to feather his own nest – building a multi-million shilling empire that made him one of the richest people in

independent Kenya. He owned expansive land in Coast Province, including prime beach plots and hotels on

the vast stretches of the Indian Ocean coastline. His signature meant the difference between being the proud

owner of a beach plot or not, as he had the sole responsibility of approving purchases. Even Charles

Njonjo, the former powerful Attorney General, wrote to Mahihu on government letterhead in both English

and Kikuyu as he sought help for his friends. Having very few people of their own in the right offices, the

coastal communities largely missed out on the ensuing scramble for the beach plots, now worth billions of

shillings. Coast Province bears the dubious distinction of having the largest number of squatters in Kenya –

an anomaly that started in the colonial period, but which was deepened by the Kenyatta government. The

land grabbing by the independence elite disinherited millions of Coast residents, planting seeds of discord

in the province.180

The subsequent governments save for the current one have done little if any to resolve the

problem of historical land injustices and where they have tried they have either aggravated the

situation or left it the way it was. The Truth Justice and Reconciliation Commission noted that

indigenous Kenyans expected the Historical Land injustices to be fully addressed soon after

independence but the first independence Government failed to fully and genuinely address the

problems.181

The Truth Justice and Reconciliation Commission further points out that all post

independence Governments have failed to honestly and adequately address Land-related

injustices that started with colonialism.182

The native communities have been left with no choice but to result to violence in order to get

their land back. On this backdrop, The Truth Justice and Reconciliation Commission notes that

180 Supra note 94, at p 15.

181 The Report of the Truth, Justice and Reconciliation Commission, para 247.

182 Ibid, para248

49

the failure of both colonial and post-independence governments to address the problem of

landlessness is the reason why individuals and communities often resort to self help measures,

including violence.183

The land question has been central to the violence that has been witnessed all over the country in

the past and more recently the 2007/08 Post election violence. The Truth Justice and

Reconciliation Commission noted that there is a very close linkage between land injustices and

ethnic violence in Kenya. More specifically, Land related injustices are prominent factors that

precipitate violence between and within ethnic tribes in Kenya.184

It is noteworthy that elections

only serve as a catalyst to ignite the flames of the agitation and infidelity the natives feel by the

independent and subsequent governments. In fact it was not the first time that such violence had

been fuelled by elections. The run up to the 1992 and post- 1997 general elections sparked

similar violence that claimed lives and displaced thousands of non-indigenous residents

especially in the former Rift Valley Province and Coast Province.

It is the loss of lives as a result of historical land injustices that informed the writing of this

thesis. Thus it was imperative to examine the root causes of the loss of lives and also how that

loss would be curtailed. It has been well explained that one of the major reason why

communities fight each other is because of the problem of historical land injustice but now this

fighting can be eliminated if the problem of historical land injustices is addressed by observing

the relevant provisions of the law that seek to address the problem to its finality.

Sometimes these injustices are taken advantage of especially to further political careers of

individuals. It is sad that individuals who are aware of the historical land injustices can go that

far which ultimately results to violence and loss of lives of innocent Kenyans.

The laws that existed on land in the previous regimes did little if any to solve the problem of

historical land injustices. However in chapter three of this contribution, it has been demonstrated

the potentiality of the new land laws including The Constitution of Kenya, 2010 in resolving the

problem of Historical land injustices. For instance the constitution establishes The National Land

183Supra note 181, Para 249.

184 Ibid , para 245.

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Commission which has been empowered to initiate investigations, on its own initiative or on a

complaint, into the present or historical land injustices, and recommend appropriate redress.

With the enactment of the new land laws, there is finally light at the end of the tunnel that one of

the greatest challenges in resolution of historical land injustices that post- independent Kenya has

faced will be resolved once and for all if the Current legal framework on land will be observed to

the letter. The Truth Justice and Reconciliation Commission stresses this point by noting that the

Current Constitution dispensation, including the new constitutional body on land and related

laws, provide a sound basis to fully address land-related injustices, including historical ones, but

only if there is political will to so use these laws and institutions.185

185 Supra note 181, at Para 254.

51

4.2 RECOMMENDATIONS

4.2.1 The Need to Involve Public Participation in the Resolution of Historical land

injustices.

It is with no doubt that the historical land injustices affect the public whether as individuals or as

communities, thus it is imperative that they who are affected should be involved in any quest to

resolve the historical land injustices.

Thus as The National Land Commission undertakes to investigate and recommend appropriate

redress in the resolution of historical land injustices, public participation should be at the

forefront. It is the same public that knows exactly what land belonged to them or their ancestors

and at large their communities.

4.2.2 The Need to consider African Customary Law specifically on Land in resolution of

Historical land injustices.

Sadly, African Customary Law has been extinguished or is in the process of being extinguished

either by written laws or the westernization of the societal values. This includes African

Customary Law on land. For instance The Constitution of Kenya 2010 provides that any law,

including Customary Law, which is inconsistent with it is void to the extent of the

inconsistency.186

It beats logic that the same written laws in Land Act, The National Land

Commission Act, The Land Registration Act, and even the constitution which have been greatly

influenced by the British laws are the ones been used to resolve the historical land injustices.

Before the advent of colonialism it is the African Customary Law that was being used by the

diverse communities in the country. As earlier noted in Chapter one of this discourse land in the

pre-colonial times was owned on a communal basis. The communities had established various

mechanisms including council of elders to determine the allocation of land rights.

It is the advent of colonialism that destroyed the natives customary law that was being used to

determine land tenure and other formalities concerning land. The colonial masters introduced

their own laws and principles. The independent government later inherited the same laws and the

186 See Article 2(4), of The Constitution of Kenya, 2010.

52

subsequent governments have continued to apply the same laws amid minor amendments. These

are the same laws that are being used to resolve the Historical Land Injustices.

Thus it is evident that African customary law that was used should be prioritized in the resolution

of historical land injustices because it was the law that was in place in the pre-colonial times

which was used to allocate land rights. It is the true basis upon which historical land injustices

can be resolved.

4.2.3 The Need to prescribe a time frame for parliament to enact the legislations concerning

resolution of historical land injustices.

Redistribution of land is essential because it provides the disadvantage and the poor with access

to land for housing and productive purposes. This is specifically important in situations where

there are gross disparities in ownership of land where a few own large tracts of land while others

are squatters in the same locality. Luckily the Constitution of Kenya, 2010 recognizes this

injustice and consequently mandates parliament to enact legislation prescribing minimum and

maximum land holding acreages in respect of private land.187

Sadly there is no time frame within which parliament is required to enact the legislation

concerning the prescription of minimum and maximum land holding acreages in respect of

private land. This loophole can be exploited by parliaments having in mind that it is the same

politicians who own large tracts of land at the expense of majority, some of who are squatters.

Parliament on this backdrop can fail to enact such legislation so as to cushion themselves. On

this back drop then it is imperative that there should be a time frame within which parliament can

enact this legislation

Further The National Land Commission Act empowers the National Land Commission, within

two years of its appointment, to recommend to parliament appropriate legislation to provide for

investigation and adjudication of claims arising out of historical land injustices for the purposes

of Article 67(2) (e) of the Constitution of Kenya188

.

187 Supra note 144.

188 Supra note 161.

53

However even in this case there is no time frame fixed within which parliament is supposed to

pass the legislation that will be recommended to it by The National Land Commission. This can

be exploited by parliament and at the end of it all that legislation may not get enacted which will

be a great injustice in the quest to resolve the historical land injustices.

4.2.4 The Need to establish a compensation mechanism to the victims of historical land

injustices especially to those whose land was grabbed.

As much as restitution would be the best remedy in ensuring that the victims of land grabbing in

the colonial times get their land back, it may be not feasible in some instances. For instance in

areas where a lot of developments have taken place or even towns have sprung up, it would be a

hard nut to crack to return those lands to the communities that claim them.

Thus in situations where restitution would prove an overreaching remedy, then compensation

would come in handy. Thus it would be imperative for The Ministry of Land, Housing and

Urban development or the relevant authorities to set up a compensation mechanism that would

ensure victims who were unjustly disinherited their land and are unable to get it back due the

developments that have taken place since or because of other factors get compensated. The

compensation should be done in market value basis.

4.2.5 Peace building among the diverse communities in Kenya.

The laws may provide hope in the resolution of historical land injustices but there is need to

involve the communities in the quest to resolve historical land injustices. One way to involve the

communities is through the concept of peace building.

This is especially important in areas where diverse communities live and the indigenous have

subscribed to the notion that those other communities residing in those areas are „foreigners‟ and

as such should be faced out.

The Government can facilitate the diverse communities to choose among themselves

representatives who would be involved in the process of peace building among the diverse

communities. With this, communities can live together harmoniously and appreciate each other.

54

This without doubt will go a long way in helping reduce the historical injustice of displacement

of communities as a result of inter ethnic violence which also leads to loss of lives as witnessed

in the past.

55

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Legislation.

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The Land Titles Act, cap 282, Laws of Kenya.

The National Land Commission Act, Cap 5D, Laws of Kenya.

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The Registration of Titles Act, cap 281, Laws of Kenya.

Case (s).

Wainaina vs. Murito (1922) 23 KLR Vol. IX, 102.

Examining the Potential of the New Land Laws in Kenya in Resolving Historical Land Injustices.

Documents

Transcript of Examining the Potential of the New Land Laws in Kenya in Resolving Historical Land Injustices.