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Land Control in Kenya

Published online by Cambridge University Press:  28 July 2009

Simon Coldham
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Extract

As the land adjudication and consolidation programme made progress in the Kikuyu Land Unit in the middle of the nineteen-fifties, it became clear that the traditional system of land tenure would have to be replaced by a system based on the registration of individual titles. Customary law was seen as an obstacle to agricultural development. Customary rules of inheritance could destroy the benefits of land consolidation. Moreover, the individual farmer had little incentive to develop his holding under customary arrangements. This point of view was illustrated by the Swynnerton Plan which proposed that “the African farmer … be provided with such security of tenure through an indefeasible title as will encourage him to invest his labour and profits into the development of his farm and as will enable him to offer it as security against financial credits”. Swynnerton hoped that the security of title conferred by registration would create a land market enabling fanners owning unviable plots or unworkable fragments to sell them off to neighbours who would be in a position to develop them more effectively. In this way “… energetic or rich Africans will be able to acquire more land and bad or poor farmers less, creating a landed and a landless class”, a process which he calls “a normal step in the evolution of a country”.

Type
Research Article
Information
Journal of African Law , Volume 22 , Issue 1 , Spring 1978 , pp. 63 - 77
Copyright
Copyright © School of Oriental and African Studies 1978

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References

1 Swynnerton, R. J. M., A Plan to Intensify the Development of African Agriculture in Kenya, 1954, s. 13.

2 Ibid., s. 14.

3 East Africa Royal Commission, 1953–1955, Report, Cmd. 9475, 1955, Ch. 23, para. 28. Those reasons are elaborated upon in paras. 29–35.

4 Report of the Working Parly on African Land Tenure, 1957–1958, 1958.

page 64 note 1 Ordinance No. 27 of 1959, later renamed the Land Registration (Special Areas) Ordinance by the Kenya (Land) Order in Council, 1960, L.N. No. 589 of 1960, s. 21 (1) and Sched. 1.

page 64 note 2 Ordinance No. 28 of 1959.

page 64 note 3 Cap. 300 (Laws of Kenya, 1964). This Act repealed and replaced the registration provisions of the Land Registration (Special Areas) Ordinance. It is intended that this system of registration should eventually apply to the whole of Kenya and replace the variety of registration systems that currently operate outside the former Native Lands.

page 64 note 4 By the Kenya (Land) Order in Council, 1960, L.N. No. 589 of 1960, s. 21 (1) and Sched. 1.

page 64 note 5 S. 3 (1).

page 64 note 6 Ibid., s. 3 (2).

page 64 note 7 Ibid., s. 4 (1). The general principle of control by statutory boards was probably taken from the Land Control Ordinance 1944, Cap. 150 (Laws of Kenya, 1948) which had introduced a rather different system of land control into the White Highlands. Although the two control systems were integrated (at least in name) in 1963, it is only since the Land Control Act, 1967 that it has been possible to talk accurately of a single land control system in Kenya.

page 64 note 8 Land Control (Native Lands) Ordinance, 1959, s. 4 (1) (d).

page 64 note 9 Ibid., s. 9.

page 64 note 10 Ibid., s. 12 (1).

page 64 note 11 Ibid., s. 11 (1) (b).

page 65 note 1 The Working Party felt that it was sufficient to give the Boards a very wide discretion which would enable them “…to forbid, for instance, if they so wish, the alienation of land outside the tribe, clan or family group, and also to exercise some restraint over the newly emancipated landowner who wishes to sell his land to the detriment of his family.” Report of the Working Party on African Land Tenure, 1957–1958, 1958, para. 101.

page 65 note 2 Colony and Protectorate of Kenya, Legislative Council Debates, 1959, vol. LXXX (pt. 1), para. 1257.

page 65 note 3 L.N. No. 147 of 1961. These Regulations were made under the authority of the Kenya (Land) Order in Council 1960, L.N. No. 589 of 1960, s. 14 (1) (c).

page 65 note 4 L.N. No. 457 of 1963. The Regulations were made under the authority of the Kenya Order in Council, 1963, L.N. No. 245 of 1963, s. 11 (1).

page 65 note 5 The Kenya Independence Order in Council, 1963, L.N. No. 718 of 1963, introduced the Constitution of Kenya, of which Chapter XII, Part 3, related to the control of transactions in agricultural land.

page 65 note 6 Constitution of Kenya, 1963, s. 219 (1).

page 65 note 7 Ibid., s. 219 (2).

page 65 note 8 Ibid., s. 219 (1), proviso. This requirement marked a striking change of policy, since previously Boards had been empowered to refuse their consent on social grounds, e.g. where the person seeking to acquire the land already had sufficient land or where the terms and conditions of the dealing were unduly onerous. Land Control Ordinance, 1944, s. 8 (1) (b) (i) and (ii).

page 66 note 1 Cap. 302 (Laws of Kenya, 1968). It will simply be referred to as “the Act” in the course of this article.

page 66 note 2 The writer will necessarily rely heavily on his own experience of the working of two Divisional Land Control Boards, the Nyando Board in Nyanza Province and the Kiharu Board in Central Province. However, it is likely that the conclusions drawn from this experience have a general application.

page 66 note 3 S. 3.

page 66 note 4 Ibid., s. 4.

page 66 note 5 Ibid., s. 5 (1).

page 66 note 6 Ibid., s. 6 (1). The principal exception is the transmission of land on death, unless it would result in the division of the land into two or more parcels to be held under separate titles; ibid., s. 6 (3) (a).

page 66 note 7 Ibid., s. 11 (1).

page 66 note 8 Ibid., s. 13 (1).

page 66 note 9 Ibid., ss. 8, 11 (2), 13 (2).

page 67 note 1 S. 4 (1). Elections could be organised along the lines of the elections of adjudication committee members, which are often held at the sub-chief's meeting.

page 67 note 2 Republic of Kenya, Report of the Mission on Land Consolidation and Registration in Kenya, 1965–1966, para. 292. The Mission is often referred to as the Lawrance Mission after its chairman, Mr. J. C. D. Lawrance.

page 67 note 3 Republic of Kenya, National Assembly Debates, 1967–1968, vol. 13 (pt. 2), col. 2497, per Mr. Shikuku.

page 67 note 4 S. 1.

page 68 note 1 The composition and procedure of the land adjudication committees provides a striking contrast.

page 68 note 2 Land Control Act, 1967, s. 9 (2), which provides: “where an application for consent in respect of a controlled transaction is made to a land control board, and the board does not determine the application within a period of three months after the application is made, the application shall be deemed to have been refused at the expiry of that period.” A literal interpretation of this provision may have absurd consequences; thus, where a board defers an application beyond the three-month period, pending the gathering of information about the applicants’ circumstances, and subsequently gives its consent, this consent is a nullity, being based on a non-existent application. Wambua v. Wathome and another, [1968] E.A. 40.

page 68 note 3 Land Control Act, 1967, s. 17 (1) (a).

page 68 note 4 Infra., p. 19.

page 69 note 1 Land Control Act, 1967, s. 9 (1), as amended by the Land (Group Representatives) Act, 1968, Cap. 287 (Laws of Kenya, 1970), s. 32.

page 70 note 1 It is outside the scope of this article to consider the operation of s. 9 (1) (c), which is largely prompted by political considerations; the section is never likely to be relevant in the former Special Areas where the writer did his fieldwork. It should be noted that the President often uses his power (conferred by s. 24 of the Act) in favour of non-Kenyans and non Kenyan companies to exempt transactions from the provisions of the Act.

page 70 note 2 Republic of Kenya, Ministry of Lands and Settlement, The Land Control Act. A Handbook for the guidance of land control boards, (1969), 8.

page 70 note 3 It harks back to the Land Control Ordinance, 1944, s. 8 (1) (b).

page 71 note 1 In one sub-location studied it had fixed the minimum size at six acres, but as rather over ninety per cent of holdings were less than six acres, subdivisions would ŕarely be allowed, if the economic minimum were strictly adhered to.

page 71 note 2 The smallest holding resulting from a registered subdivision that the writer encountered was two-thirds of an acre.

page 71 note 3 Strictly speaking, the partition should be caught by s. 9 (1) (b) (iv) as it involves the division of the land into two or more parcels, the boards, however, seem reluctant to counter the wishes of the registered co-proprietors who have already, in all likelihood, subdivided the land on the ground. Under the Registered Land Act, 1963, ss. 105 (1) and 106 (1), the Land Registrar has powers, in certain circumstances, to prevent partition where it would adversely affect the proper use of the land or where the resultant share would be below a certain minimum area. These powers do not concern the present discussion and in any case have never to the writer's knowledge been used. Indeed the District Land Registrar acts as secretary to the land control board and may be taken to approve the devices mentioned here.

page 71 note 4 Wilson, R. J. A., “Land Control in Kenya's Smallholder Farming Areas,” East African Journal of Rural Development, vol. 5, Nos. 1 and 2 (1972), 123, at p. 132. Perhaps the argument of the board is that the subdivision is not permanent and that when the lease expires (the normal term is ten years), the board will consider the way in which both plots have been developed before granting its consent to a renewal of lease.Google Scholar

page 72 note 1 Similar accounts are given by other writers, e.g. C. Leys, “Politics in Kenya: the Development of Peasant Society,” University of Nairobi, Institute for Development Studies, Discussion Paper no. 102, 1970, note 45. See also M. Ali, “Political implications of land registration: a case-study from Nyeri district in Kenya”, University College, Dar-es-Salaam, LL.B. dissertation (unpublished), 1970, 17.

page 72 note 2 Republic of Kenya, Ministry of Lands and Settlement, The Land Control Act. A Handbook for the guidance of land control boards, (1969), 11.

page 72 note 3 Ibid.

page 73 note 1 Today land adjudication is normally governed by the Land Adjudication Act, 1968, Cap. 284 (Laws of Kenya, 1970).

page 73 note 2 See p. 63, above.

page 73 note 3 Republic of Kenya, Report of the Mission on Land Consolidation and Registration in Kenya, 1965–1966, para. 287. Interestingly enough, Mr. Lawrance was able to report a few years later, “The procedure devised for control of dealings in land has been successful in its primary purpose of safeguarding the new landowners.” J. C. D. Lawrance, “Land Consolidation and Registration in Kenya,” University of London, Institute of Commonwealth Studies, Seminar paper (unpublished), 1969, 5.

page 74 note 1 Considerable litigation has already arisen in the Central Province as a result of section 6 (2) (a) of the Act which provides that an agreement to be a party to a controlled transaction becomes void for all purposes at the expiration of three months after the making of the agreement, if application for the appropriate land control board's consent has not been made within that time. A situation that commonly arises is that an unscrupulous vendor (V) agrees to sell a plot of land to P1. P1 pays over the purchase-money, enters into possession of the land and develops it, but no application is made to the land control board. V then finds another purchaser, P2, who is prepared to pay more for the same piece of land. If P1's agreement has become void for all purposes, it is not clear what remedy he has. The complex issues that this situation can raise are outside the scope of this article.

page 74 note 2 Land Control Act, 1967, Sched. s. 2.

page 74 note 3 Ibid., s. 3.

page 74 note 4 This may refer to s. 28 of the Registered Land Act, 1963 which confers upon the registered proprietors a title “free from all other interests and claims whatsoever”, subject, of course, to interests entered or protected on the register and overriding interests.

page 75 note 1 Central provincial land appeals board minutes (27/1/74), Land Registry, Nairobi.

page 75 note 3 P. 66, above.

page 75 note 4 The writer was also able to collect information about a board operating in another province. In the four years, 1970–1973, it had heard 1,730 applications of which it had rejected only five: Buret land control board minutes, Land Registry, Kericho.

page 76 note 1 Even the system introduced by the Land Control Ordinance, 1944 into the White Highlands does not appear to have been very effective. In any case the board very rarely rejected applications. For example, in 1956 only 3 applications out of a total 1,141 were rejected and in 1957 only 7 out of a total, 1,414. Colony and Protectorate of Kenya, Lands Department, Annual Reports, 1956–1957.