When the State of Emergency was declared in 1952, most Africans in Kenya were living on the land in tribal reserves known as Native Land Units. Land rights within the Land Units were governed by native law and custom, though the demand for individual titles was strong, particularly in the Kikuyu Land Unit. However, administrators were divided about the desirability of hastening the demise of traditional institutions and concentrated their efforts on promoting agricultural development by taking measures against soil erosion and encouraging farmers to consolidate their holdings. It was only when large-scale compulsory land consolidation schemes were initiated in the mid-fifties among the Kikuyu that serious consideration was given to the nature of the title which the owner of a consolidated holding would acquire. Many people saw customary law as an obstacle to agricultural development (after all, the customary law relating to the allocation and inheritance of land was largely responsible for the considerable fragmentation of holdings that had occurred) and recommended that it be replaced by a system based on the registration of individual titles.

In a general survey of Tswana culture, written for the International African Institute twenty-five years ago, I summarized as follows the main features of the bogadi (bridewealth) system:

The judgment of the Supreme Court in Okoiko v. Esedalue brings into prominence once again the question of accountability in the customary law relating to pledge of land. In that case Elias, C.J.N., made the following propositions which call for comment: (1) A pledgee who engages in commercial exploitation of pledged land is liable to account for his use of pledged land.