1.3. The Foundations of the Law of Property in Kenya

Having introduced, albeit briefly, the concept of the law of property in land, it is

important that we again briefly examine its foundations in Kenya. This is necessitated by

the fact that any student of the law on proprietary transactions should not only be well

versed in the law which creates the subjects of such transactions, but also with its

foundations. Accordingly, the purport of this sub-topic shall be to introduce the reader to

the peculiar circumstances and happenings, which have defined our law of property in

land and by extension, the subjects of the Kenyan Law on proprietary transactions. This

is done with a view to laying a concrete basis for the oncoming extensive and intensive

study of the latter branch of Kenyan Law.

To begin with, the foundations of the law of property in Kenya is to be traced first, to the

customary land law tenure and secondly, to the colonial administration in Kenya. These

two factors have largely defined the historical underpinnings of property law in Kenya

which have consequently greatly informed and impacted the present regimes on property

and proprietary transactions. Indeed, it would be well nigh impossible for anyone to

attempt to grasp contemporary law of property in land, leave alone the law on proprietary

transactions, if one did not possess a marked appreciation of the historical place of

customary land tenure and the origin, nature, and concerns of colonialism in Kenya.

1.3.1. Customary Land Tenure System

Customary land law tenure system largely obtained prior to the advent of colonialism in

Kenya. But, as it would be seen hereunder, the system has been significantly replaced by

the agrarian policy introduced by the colonial government in Kenya though some

communities and areas in Kenya still remain under the authority of customary land law

and over which application of formalization processes have had no significant

consequences. It is nevertheless important to study this system of law for, as already

elucidated above, it forms the foundation of the regime of law regulating the ownership

and possession of property and the province of proprietary transactions in Kenya.

Customary land law tenure owes its legitimacy to the traditional societies (communities)

where land was owned on a communal basis by different tribes (groups of people) who

lived in the region presently Kenya before the advent of the colonial rule.1 Though Kenya

is composed of diverse groups of people with different values and perception2 and despite

the fact of there being varying forms of ownership of land, it is possible to discern certain

common characteristics in the land tenure systems of communities.3 However, it is vital

to note that the social transformations of the people and their philosophy as determined

by the dictates of the historical stage of development (hunting, gathering, herding and

settled farming etc.) were important influences on the land tenure system of each

traditional community.4

Customary land law tenure was (and is) anchored on the premise that land is much more

than the physical soil. As such in many African societies, traditional philosophy ascribed

a sacred significance to land. In particular land did not belong to a particular person but

to God.5 The Njonjo Commission of Inquiry into the Land Law System of Kenya

captured well this phenomenon. It stated thus in its 2002 report:

‘…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

1 Much of the available literature on property relations in the pre-colonial period have generally characterized land tenure in Kenya as having been communal in the sense that the entire community exercised ownership over its entire land through some traditional institutions. See for example, Kenyatta Jomo, Facing Mount Kenya: The Traditional Life of the Gikuyu, Nairobi, Kenway Publications, 1938, p. 25; see also James R.W. and Fimbo G.M., Customary Land Law of Tanzania: A source Book, , East Africa Literature Bureau, Dar es Salaam, 1973, p. 32 Kenya has more than forty-two (42) ethnic communities, each having a variety of land tenure systems. This limits the extent to which one can broadly generalize and categorise customary systems of land tenure. 3 See Ogola B.D. and Mugabe J., “Land Tenure Systems and Natural Resource Management” in Juma C. and Ojwang J.B. (eds), In Land We Trust: Environment, Private Property and Constitutional Change, Initiatives Publishers and Zed Books, Nairobi, 1996, pp. 85-1164 See Smokin Wanjala. “Recurrent Themes in Kenya’s Land Reform Discourse Since Independence” in Essays of Land Law: The Reform Debate in Kenya, Faculty of Law, University of Nairobi.5 Among the Ogiek for instance, all land belonged to God. To the Gikuyu, the earth was considered a most sacred thing with the soil being especially honoured. See also Odour, M. , “Community Based Property Rights: A Case Study of the Endorois Community, Baringo District”, Draft Paper presented at in-house Workshop on Community Based Property Rights and Sustainable Natural Resource Management in Kenya, RECONCILE, Nakuru, 9th August, 2000

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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.’6

Since it was so, it meant that members of the particular community could exercise certain

rights over the land in varying degrees of equality with others of the same community. In

turn, that right was secured by virtue of membership in that community or more

specifically by membership into some socially distinct unit of that community.

Membership into a community or its unit of course required the performance of certain

obligations, which in turn defined rights of access and use of land. The degree of access

and use exercised by any particular member would also depend on the status of that

member. In essence customary land tenure was inclusive in nature.7

In the Pastoral communities, communal ownership was predominant and land use was

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

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

production thus discouraging individualized property ownership. 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.8

6 Report of the Commission of Inquiry into Land Law System of Kenya on Principles of a National Land Policy Framework Constitutional Position of Land and New Institutional Framework for Land Administration, Government Printer, Nairobi, November 20027 By inclusive land tenure is meant tenure which guarantees that the available land caters for any expansion in the community population on a continuing and re-adjusting basis through re-arrangement and re-allocation of access rights to the land. An “exclusionary” Land tenure system on the other hand seeks to accord to the individual primary control and primary access to the land in question thereby de-emphasizing and often negating corporate-sharing of access rights to the land in question8 See Asiema, J. K. & Situma, F.D.P. (1994), “Indigenous people and the Environment; The case of the Pastoral Maasai of Kenya” in 4 Colo. J. Int’L Env’t L & Policy pp. 149 - 171

3

Tenure relations under this customary system were controlled by some socially distinct

authority usually comprising of a functionary e.g. a chief, an elder, council of elders,

spiritual leader etc.9 Such an authority solved the problem of allocation by overseeing the

access, management and use of land.10 Control was for the purpose only of guaranteeing

access to land and the resources found on it. Decisions about whom to exclude and who

not to exclude also rested with this controlling authority.

In summary, Adam Leach observes that there are at least five dominant concepts to most

customary tenure systems, as follows:

a. Tenure is family based and the head of the family holds rights on behalf of

other family members.

b. Individual and group membership of the social unit of production or

political community have guaranteed rights of access to land or other

natural resources.

c. Rights of control are vested in the political authority of the unit or

community.

d. Private property rights accrue to individuals because of the investment of

their labour in exploiting resources.9 These functionaries served the allocator’s role in the tenure relations. According to Jeremy Waldron in his 1988 book, The Right to Private Property, the concept of property is the concept of a system of rules governing access to and control over material resources which include land. These material resources are usually scarce with the result that conflicts abound as to who is to get what at what time. Herein arises the problem of allocation, that is, the problem of determining peacefully and reasonably predictably who is to have access to what resources for what purposes and when. In a traditional community the power of resolving this problem i.e. the allocating power vests in some local leader. See Waldron J. , The Right of Private Property, Oxford Clarendon Press, London, 1988, p. 3210 Generally, the composition of the allocating authority was dependent on the use for which the land was employed and the social organization of the community. Thus for example, among the sedentary agricultural groups leading a more settled life, control of use and access generally began at the lower level of the family and progressed concentrically to the highest unit of control in the community. Among the Gikuyu, for example, a man would acquire an estate by cleaning a vast tract of land often extending to a complete ridge. The man would start a nuclear family which would expand later on to become an extended family at which point the locus of control would then shift progressively to the leaders of the greater lineage members, eventually to the clan elders. Among the luo a common grandfather regulated use and access within a lineage set-up. He was recognized as the land controlling authority and allocated cultivation rights and controlled types and scopes of use with regard to land that required more expansive access tights e.g. grazing. A council of common grandfathers exercised the allocating role. See Odour M., “Community-Based Property Rights and the Management of Natural Resources in Kenya”, Unpublished LLB Dissertation presented to Faculty of Law, Moi University, 2001, p. 26. See also Ogolla and Mugabe Supra n. 11, p. 98

4

e. Resources which do not require extensive investment are shared as

common pasturage and managed by the relevant political authority or

people with appropriate jurisdiction.11

However, with the introduction of colonialism, these customary conceptions about use

and ownership of land began to be eroded. The colonial masters brought with them new

institutions of ruler-ship which systematically undermined the traditional socially

accepted institutions of leadership.12 Moreover, other social and cultural changes

occurring within communities have generally changed the outlook of their members with

the result that traditional forms of production may no longer be fashionable. Other

variables like population increase have generally forced communities to change their

means of economic production. Nevertheless, as earlier noted, there are certain areas and

communities that still practice and hold fast to the customary land tenure system.

1.3.2. The Colonial Factor in the Evolution of Kenyan Law of Property and

Conveyancing

The incidence of colonialism in Kenya dates back, generally, to the scramble for Africa

via the Berlin Conference of 1885, and, particularly, to the declaration of a protectorate

over much of what is now Kenya on 15 June 1895.13 From then, the British rule endured

11 See Adam Leach, “Land Reform and Socioeconomic Change in Kenya” in East Africa Journal of Peace & Human Rights, vol 4, No. 1, 1988, pp. 41-69. see also M.P.K. Sorrenson, ‘The Origin of European Settlement in Kenya, Oxford University Press, Nairobi, 196812 The colonial masters were guided (or is it misguided?) By the notion that the African community had no concept of land ownership. They thus sought to replace the African system of communal land ownership with individual ownership of land which was in direct contrast with the understanding of Africa’s idea on land ownership. It was for example; argued that since natives had no any form of political organization could, not accordingly; claim to have any rights in land. It was stated, “sovereignty if it can be said to exist at all…is made of chiefs, elders, who are practically, savages and who exercise a precarious rule which have not yet developed either an administrative or legislative system-even the idea of tribal ownership is unknown, except in so far as certain tribes usually live in a particular region and resist the intrusion of weaker tribes…. The occupation13 At the time of the scramble for Africa which saw East Africa divided into British East Africa (under Britain) and German East Africa (under Germany), the British policy in East Africa was based on the strategic rather than economic significance. According to Mungeam, the reason for Britain’s assumption of territorial jurisdiction over East Africa was not in the new acquisition of political and economic significance but in the wider field of international diplomacy. Mungeam’s emphasis is founded on the strategic significance of the opening of the Suez Canal in 1869 and the importance of controlling the head waters of river Nile viz Uganda. To him, there was little in East Africa to move the British Empire to assume jurisdiction (apart from the aforecited reason). However, this position is found wanting considering

5

until 12 December 1963 when Kenya attained its independence. Throughout this period,

the major concern of the colonial masters was capital accumulation which concern was

initially hindered with Kenya being under the protectorate status.14 Pursuant to an opinion

given by the Law Officers of the British Crown in 1833 in respect of Ionian Island, the

protectorate status did not confer radical title to the land in the territory.

As a consequence thereof, rights in land could only be acquired by way of conquest,

agreement, treaty and to an extent by sale. Some of these methods were only possible

within the ten-mile strip at the coast, which was, then under the jurisdiction of Zanzibar

Sultan.15 This difficulty called for drastic revision of imperial jurisprudence which was

undertaken gradually over years culminating in the explanation by the Law Officers in

1899 that their 1833 opinion only applied to protectorates “with a settled form of

Government”.16 In the case of the East African protectorate, the law officers opined that

that following the construction of the Kenya-Uganda Railway coupled with the discovery of a climate conducive for European settlement and agriculture, the British recognized Kenya as of economic importance to their needs. See Okoth Ogendo, Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya, ACTS Press, Nairobi, 199114 The process of capital accumulation was to be effected through a plantation/estate system of agricultural production that invariably had to be under the control of Europeans. This necessitated the need to have and wrest control over land from the natives. The land so acquired could then be used as an incentive to attract settlers. 15 Land tenure issues in the 10-mile coastal strip of East Africa are intertwined with the early Swahili settlement in the region and the Indian Ocean trade. In Kenya, thia area covers a strip jof land of 1900Km stretching from Vanga in the south coast to the Lamu archipelago in the North. The ownership of land in this area hjas changed hands severally between the Sultan of Zanzibar, imperial British East Africa Company (IBEACO), and later the British and Kenya Government. The Omani Arabs conquered the East Coast of Africa in 1660 AD and declared their sovereighty over the entire coastal region from Mozambique to Somalia.In 1885, Sir William Mackinon of the IBEACO signed an agreement with Sultan Sayid Baghash of Zanzibar for leasehold on the 10-mile strip. In 1888 all the land in the area was ceded to the British Government by virtue of a concessinary agreement signed between the British and the Sultan of Zanzibar. Under the agreement, all rights to land in this territory, except for the private property, were vested in the Crwon. In 1902, the RDA was enacted to facilitate registration of documents relating to priate land in the area. In 1908 it bacame necessary to adjudicate land in the 10-mile strip in order to separate private property from Government land and the LTA of 1908 was passed for this purpose. Those individuals who successfully claimed their land rights were issued with a freehold certificate of ownership or certificate of mortgage. Title deeds issued for the RDA lands did not create new rights to land but confirmed the existing and did not pertain to new grants. Today, most of these titles have been converted to either the RLA or into the RTA. 16 Prior to the 1899 Law Officer’s opinion the British Government had already taken legislatives initiatives to remedy the problem albeit for immediate purposes. In 1896 for example, the Indian Land Acquisition Act 1894 was extended to the protectorate and this allowed the administration to acquire land compulsorily for the railway, for government buildings, and for other public purposes. Further in 1897 the Land Regulations was promulgated to draw a distinction between land within the Sultan’s dominions and land elsewhere in the protectorate. These regulations modeled after the Imperial British Africa Company’s

6

the Foreign Jurisdiction Act of 1890 gave the Crown the power of disposition over

“waste and unoccupied land”.

The opinion of the Law Officers of the Crown having been revised, the colonialist found

the basis of subsequent legislative instruments touching on land. In 1901, the East Africa

(Lands) Order in Council17 was passed to give effect the Law Officer’s opinion. It vested

crown lands in the whole of the protectorate in the Commissioner and Consul-General for

the time being and such other trustees as might be appointed, to be held in trust for her

Majesty. The Commissioner was empowered to make grants or leases of Crown lands on

such terms and conditions as he might think fit, subject to the directions of the Secretary

of State.18In 1902 the Commissioner promulgated the Crown Lands Ordinance which

provided for outright sales of land and leases of ninety-nine years duration.

In 1915 the Crown Lands Ordinance re-defined Crown lands 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.19 It also 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.20 The

import of this Ordinance was, according to Ghai and McAuslan, the complete

(IBEAC) 1894 Land regulations were promulgated vide the Zanzibar Order-In –council for the ‘peace, order and good governance in Kenya’. These regulations empowered the colonial government to sell land freeholds within the Sultan’s dominions only. Elsewhere, only certificates occupancy were available. Initially these were for 21 years and later for 99 years. The settlers were not satisfied with this state of affairs. Some took to unorthodox means of acquiring land, for instance, by purchasing it from the locals. This was in spite of the fact that the Natives had no title to the lands they occupied save for the right of occupation. See the judgment in Mulwa Gwanobi v. Alidina Visram (1913) KLR 1417S.R.O. 661. 18 Crown land was defined as, ‘all public lands within the East Africa Protectorate which for the time being are subject to the control of Her Majesty by virtue of any treaty, 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 1894 or otherwise howsoever’. 19 Pursuant to section 25 thereof, the commissioner could grant settlers twenty-five hectares for purposes of agriculture. He could go upto 7500 hectares with the approval of secretary of the state. In addition, he could grant leases of agricultural land for a period of 999 years and for a period of 99 years in regard of town plots. Further, the commissioner could subdivide any town plot for purposes of construction. Under section 4 thereof, the commissioner could reserve from sale, lease or other disposal any piece 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.20 The view that Africans or natives could not hold any title to land was judicially endorsed by Justice Barth in his notorious judgment as pronounced in the case of Wainaina V Murito (1922) 23 KLR Vol. IX, 102,where his lordship categorically stated that natives were tenants at the will of the Crown in respect of the land they occupied.

disinheritance of Africans from their land.21 It must be further noted that the 1915 Crown

Lands Ordinance marked the onset of private individual land ownership in Kenya.

As such, by the time Kenya was declared a colony in 1920, the British had already

acquired full control of the Kenyan soil. In effect the colonial government had become

the allocator of land rights. Thus, throughout the colonial period, the British government

controlled the regime of property and conveyancing in Kenya. It is the system created by

the colonial regime that was inherited by the African Kenya government upon attaining

independence in 1963 and still obtains today albeit with slight amendments. The

maintenance of the colonial regime on land law and other factors is attributed to the

decolonization process itself.22 The process represented an adaptive, co-optive and pre-

emptive process which gave the new power elites access to the European economy.

Therefore:

(a) It had to be moulded in a way that allowed the settlers to adapt to the changed

economic and political situation by identifying new centres of influence that were

not overtly political;

(b) It had to achieve the aim of socialising the new elite into the colonial political

economic and social patterns to ensure that the elite was able to rule functionally

on an inherited political structure and co-operate with outgoing rulers; and

(c) The process was geared towards preventing the mobilisation of a nationalist base

that would be opposed to continuation of colonial policies after independence.

For these reasons, it will be realized in the succeeding chapters that the theory and

practice of conveyancing in Kenya resembles the one that obtains in England in a myriad

21 Ghai and McAuslan22 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, re-retrenchment, hence, continuity of colonial land policies, laws, and administrative infrastructure. Explanation for this lies primarily in the conduct of the decolonization process itself and the opportunity which it accorded the new power elites to gain access to the European economy’. See Njonjo Report p. 30. See also Wasserman, G., “The Independence Bargain: Kenyan Europeans and the Land Issue 1960-1962” in Journal of Commonwealth Political Studies, 1973, vol II, No. 2.

of ways. However, while the system in England has over the years been refined to

capture societal developments, the one in Kenya have undergone very minimal

developments, if any.

1.4. LAND TENURE SYSTEMS IN KENYA

Land tenure refers to the terms and conditions under which access to land rights are

acquired, retained, used, disposed of, or transmitted. Tenure systems represent relations

of people in society with respect to the essential and often scarce land.23 They are culture

specific and dynamic, changing as the social, economic and political situations of groups

change. Land tenure ordinarily has at least three dimensions namely, people, time and

space.24

In so far as people are concerned, it is the interaction between different persons that

determines the exact limits of the rights any one person has to a given parcel of land.

These rights are ordinarily not absolute since there are rules that govern the manner in

which the person with tenure is to utilise their rights. While the time aspect of tenure

determines the duration of one’s rights to land, spatial dimensions limit the physical area

over which the rights are to be exercised. The spatial dimension of tenure may be difficult

to delineate in exclusive terms since different persons may exercise different rights over

the same space at different times.25

It is imperative that one understands the land tenure systems obtaining in Kenya so as to

appreciate the different legal formalities available for the transfer of interests in land

under the different land tenure systems. The historical a events and patterns that have

impacted land law and conveyancing in Kenya, as discussed above, has yielded at least

three main systems of land tenure, viz, so called “modern” (individual) tenure, public

holding and customary (Group) tenure.26 In view of the fact that customary land tenure

23 See Lawry S. & Bruce J., 1987, Resource Tenure & Management of Natural Resources in Africa24 Ibid. 25 See Fortmann L & Riddel J, (1985), Trees and Tenure: An Annotated Bibliography, Madison & Nairobi: Land Tenure Center & International Council for Research in Agroforestry26 See Adam Leach, “Land Reform and Socio-economic Change in Kenya” in East Africa Journal of Peace & Human Rights, vol 4, No. 1, 1998, pp, 41-69

has already been expounded above, it would only be logical that the same is not repeated

here.

1.4.1 Public Tenure

The system of public tenure stems from the idea or notion of the state as the owner of

radical title i.e. all land belong to the state.27Public tenure, therefore, designates the

Government as private landowner and follows the provisions of the Crown Lands

Ordinance of 1902 as subsequently amended and currently reflected and embodied in the

GLA.

Public tenure, therefore, is a province of Government land or public land. Government

land in Kenya is the land that was vested in the Government of Kenya by sections 204

and 205 of the Constitution that was contained in Schedule 2 to the Kenya Independence

Order in Council 1963 and section 21, 22, 25 and 26 of the Constitution of Kenya

(Amendment) Act 1964. Government land in turn comprises of two sub-categories i.e.

un-alienated and alienated Government land.

Unalienated Government land refers to Government land which is not for the time being

leased to any other person or in respect of which the Commissioner of Lands has not

issued any letter of allotment. In other words, these are lands vested in the Government

and over which no private title has been created. The defining element of such lands is

that they have not been alienated, meaning given away or ceded by the Government to

another person or entity.

27 The source of the medieval theory of land law was the Norman invasion of England in 1066. From this point onwards the King considered himself to be the owner of all land in England. Since the Normans had no written laws to bring with them to their newly conquered territory, what they created was effectively a system of landholding in return for the performance of services. Thus came into being the classic feudal structure. According to the feudal theory, all land was owned by the crown and was subject to the Crown only upon the fulfillment of certain conditions. Land was never granted by way of an actual transfer of ownership. Thus as Pollock and Maitland were later to say, ‘all land in England must be held of the king of England, otherwise he would not be the King of all England. To wish for an ownership of land that shall not be subject to royal rights is to wish for the state of nature.’ See The History of English Law (2 nd edn., London 1968), vol 2, 3.

Alienated Government Land on the other hand, is land which the Government has leased

to a private individual or body corporate, or which has been reserved for the use of a

Government Ministry, Department, State Corporation or other public institution, or land

which has been set aside by way of planning, for a public purpose (this latter category is

usually referred to as public utility land). The defining element of alienated Government

Land is that it has been reserved for the use of a Government institution or it has been set

aside for the use of the public or it has been leased to an individual.

In summary, public land is all that land which is vested in the public or held under public

tenure.28 It means all the land in which every Kenyan has an interest by virtue of being a

member of the public.

1.4.2 Modern (Individual) Tenure

Today, ‘modern tenure’ forms the basis of official policy towards land in Kenya.

Individual tenure system owes its roots to colonial instruments that sought to propagate

ideals of agricultural production based on individual tenure system. The most significant

of these instruments was published in 1954 as A Plan to Intensify African Agriculture,

widely known as the Swynnerton Plan. This plan saw the problem of land in terms of

tenure and the technology of production. The problem was to be addressed firstly by the

creation of an indefeasible title, and secondly by intensification of agricultural production

in the native areas. The general expectation was that natives would be able to get

maximum returns from their farms and hence abandon the clamour for return of the land

taken from them by the Europeans.

The Swynnerton Plan was introduced as land tenure reform policy with the aim of

perpetuating land ownership centered on the individual. Customary tenure based on

28 It has been argued that the concept of ‘public land’ was not alien to African customary tenure. In this regard, public land, in customary law, fell under what are usually refereed to as “commons”, thus there was territory which served the interests of the community in its corporate status. In this category were found lands such as common pathways, watering points, grazing fields, recreational areas/grounds, meeting venues, ancestral and cultural grounds, and many others. No individual or group could be allocated rights of access to such public lands other than for purposes for which they had been set aside and recognized. The community’s needs could not yield to private interests.

ownership by the community was thought to tie up land in many hands hence serving as

an obstacle towards attainment of a free market. If high levels of investment were to be

achieved, then land ownership had to be “rescued” from the yokes of customary

ownership, so the argument went. Further, it was said that customary ownership created

insecurity and hence provided poor incentives for investment. Agricultural growth on the

contrary required the conversion of kinship-based systems of customary tenure, incapable

of being sold, to formal individual titles that could be exchanged freely in the market. 29

The report summarized the advantages of individual tenure system in the following

words:

‘individual tenure has great advantages in giving to the individual a sense

of security in possession and in enabling, by purchase and sale of land, an

adjustment to be made by the community from the present unsatisfactory

fragmented usage to units of an economic size. The ability of individuals

to buy and sell land by a process of custom opens the door to that mobility

and private initiative on which a greater sector of economic progress tends

to depend. The urban wage earner can sell his homeland plot which so

often the uneconomic one confident in the knowledge that he can buy

another when occasion demands. The specialist farmer is relieved of the

liability of providing a place for the subsistence of his clan relations.

Moreover, individual tenure should lead to the release and encouragement

of new genius and to new experiment in finding the most productive use

of land.’30

Predicated on these arguments, the Native Land Tenure Rules were promulgated in 1956

establishing a system of adjudication, consolidation and registration. Subsequently, the

Native Land Registration Ordinance was enacted to provide for individual ownership of

land upon registration. It was posited that the registration of private rights in land resulted

in more efficient use and conservation of the available land.31 Private title was supposed 29 See East African Royal Commission Report (1955) Cmnd 9475. 30 East African Royal Commission Report (1955) Cmnd 9475, paragraph 77, p. 32. 31 See Jean-Phillipe Platteau (2000), “Does Africa Need Land Reform” in C. Toulmin & J. Quan (eds), Evolving Land Rights, Policy and Tenure in Africa, London, DFID/IIED/NRI, pp. 51-72

to enable land to acquire a collateral feature so that it could be offered as security to

obtain credit, which could be channelled towards further improvement.

These laws are in no doubt the forerunner of the present system obtaining under the Land

Adjudication Act, the Land Consolidation Act and the RLA. The RLA, as will be seen,

currently embodies the individual tenure system with the effect that the registration of an

individual as the proprietor of land vests in that person an absolute title. As will be seen

later, the introduction of absolute proprietorships as a separate land tenure category by

the enactment of the RLA was intended to extinguish customary tenure and replace it

with rights that would be individually and exclusively held.

CHAPTER TWO

THE LEGAL FRAMEWORK REGULATING CONVEYANCING IN KENYA

2.0. INTRODUCTION

This chapter aims to examine the various pieces of legislation, which as already noted are

what constitute Kenya’s primary source of Property Law. This will serve to tie up the

prior discussion on the philosophical origins of colonialism, particularly when we

examine the actual reasons which led to the enactment of some of these statutes by the

colonial legislature, thus leading to what may be said to be the onset of administration of

property rights in Kenya.

As such the starting point ought to be a discussion on the Crown Land ordinances of 1902

and 1915 which served to facilitate the alienation of crown land by the colonial

government. However, these two pieces of law have already been looked into in Chapter

one and, therefore, the same will not be repeated herein. The discussion here, then, will

begin with the Registration of Documents Ordinance of 1915 running through to the

Registered Land Act of 1963.

2.1. The Registration of Documents Ordinance 1915 (Cap 285 Laws of Kenya)

This piece of legislation was enacted alongside the 1915 Crown Lands Ordinance. The

Registration of Documents Ordinance, (hereinafter the R.D.O.), set up Registries in

Nairobi, Mombasa and Malindi. This was done with a view to facilitate the registration

of documents relating to transactions involving alienated crown land. Subsequently, the

registries in Malindi and Naivasha were closed down and their registers transferred to

Nairobi and Mombasa.

It is noteworthy that the RDO was the very first registration statute in Kenya. It

introduced a simple system of registration which had been applied in Zanzibar before.

All documents registered pursuant to its provisions pertained to land which was the

subject of either 999 agricultural land leases which had been converted into freeholds by

the commissioner pursuant to his powers under the 1915 Crown Land Ordinance.

All surveys and consequent registrations under the RDO were based on the claims of

ownership of land submitted by the residents of the coast to the Recorder of Titles. Since

independence the RDO, or RDA (A for Act) as it is currently referred to, is applicable

only to unadjudicated claims at the Coast. However, it is noteworthy that major parts of

the Register kept pursuant to its provisions have been converted to the Registered Land

Act, (Cap 300) and the Registration of Titles Act (Cap 281) regimes of registration of

interests in land

2.2. The Lands Title Act (Cap 283 Laws of Kenya)

This Act, initially an ordinance32, was enacted in 1908 for purposes of facilitating

alienation of Crown Land at the Coast. The precise background to the enactment of the

Land Titles Act (hereinafter L.T.A.) lies in the fact that the colonial Government needed

to distinguish between private land and crown land situate within the ten (10) mile coastal

strip.33 It must be reiterated that this strip had been leased from the Sultan of Zanzibar

subject to the rights of the inhabitants, who were mostly Arab settlers.34

32 The Land Titles Ordinance 190833 Prior to the enactment of the 1908 Ordinance, the British authorities had assumed jurisdiction over the ten-mile coastal strip, which was before then under the suzerainty of the Sultanate of Zanzibar, by virtue of an Administrative Agreement entered into in 1895 with the Imperial British East African Company (IBEAC) transferring control over lands ceded to the latter by virtue of the concession Agreement signed in 1888 with the Sultan. Under that Agreement, all rights to land in the Sultan’s territory, except private lands, were ceded to the company. See Sorrenson, M.P.K., The Origins of European Settlement in Kenya, Oxford University Press, London, 196834 The land problems that have incessantly visited the coastal region have been linked to the 1908 Ordinance. According to the report of a Parliament Select Committee released in 1978, ‘adjudication of claims under the 1908 Ordinance (was), the primary cause o landlessness by indigenous people in the ten-mile strip as we know it today. For it ruled out the possibility that these people and sections non-Mazrui Arab communities could ever acquire title or guaranteed access to land during the colonial period. The reasons why most indigenous coastals 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 o land tenure. That they should be asked to lay claims upon the soil

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Those individuals who successfully claimed private land were issued with Certificates of

Ownership giving freehold title or Certificates of Mortgage or Interest covering lease

holds depending on the nature of title adjudicated. 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 was

borrowed from an Act of Ceylon.35 Lastly, it must be pointed out that any plot, which was

not successfully claimed by private individuals, was vested in the colonial government

and upon independence, in the Kenya Government.

2.3. The Registration of Titles Act (Cap 281 Laws of Kenya)

This statute was enacted in 1920 whereupon all successfully claimed plots were

registered under it. Thus to date any titles adjudicated in 1920 and thereafter are

registered under the Registration of Titles Act (hereinafter the RTA) unless they have

been converted to Registered Land Act (Cap 300) titles.

It is worth noting that when the LTA had been enacted in 1908, it had been expected that

the process of adjudication of claims would be completed within a short time.

Unfortunately, this was not to be so, and the office of the Recorder of Titles was

eventually closed down due to lack of funds in 1922. Therefore, the RTA was enacted

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

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 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 o 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 o that land, 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...’Report of the Select Committee on the Issue of land Ownership along the Ten-Mile Coastal Strip of Kenya, Government Printer, 197835 Act No.30 of Ceylon

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

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

Apart from introducing a form of title registration based on the Australian Torrens system

of title registration, the RTA also introduced conveyancing by statutory form. Lastly it

ought to be noted, 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 LTA. In addition, it also applies to all leaseholds which have been converted from

the terms of 99 years since 1920 (or even 999 years) to freeholds and to any titles

converted on a voluntary basis from the Government Land Act, (Cap 280) or LTA

registration to RTA Titles.

2.4. The Indian Transfer of Property Act 1882

Basically, the LTA, RDO and the RTA were registration statutes. They only provided

for the registration of ascertained interests in land but not the manner of dealing or

transacting in the said interests. In a nutshell, as at the time of the enactment of the said

statutes, there was no general substantive law governing the conduct of proprietary

transactions or conveyancing, as they are commonly known.

Naturally it follows that the concept of title was alien to the Kenyan legal system as it

obtained then. This state of affairs was addressed vide recourse to Article 11(b) of the

1897 East Africa Order-in-council. This article allowed the application of the 1882

Indian Transfer of Property Act to Kenya. This Act, (hereinafter referred to as the ITPA)

was applied in Kenya as a substantive law, principally for the purpose of catering for the

interests of European Settlers.36

To date, the ITPA (1882) is still the main substantive law governing transactions in land

concluded under the LTA and the Government Lands Act (Cap 300) hereinafter referred

to as the GLA. However, it must be pointed out that the ITPA (1882) had inherent

shortcomings, the greatest being that it was neither a conveyancing nor a registration 36 The ITPA should be read in conjunction with the Indian Act (Amendments) Ordinance (Cap. 2 (1948))

17

statute. This deficiency in the ITPA (1882) made it necessary for documents relating to

transactions to be drawn in accordance with the provisions of the English (1845) Real

Property Act and the 1881 Coveyancing Act of Victoria.

Clearly, there was a burning need for a substantive enactment. Hence the Registered

Land Act (Cap 280) was eventually to function as a substantive conveyancing and

registration statute. Before dealing with this legislation, however, it is deemed important

to deal first with the Government Lands Act (Cap 280 Laws of Kenya).

2.5. The Government Lands Act (Cap 280 Laws of Kenya)

This enactment is no doubt a replacement of the 1915 Crown Lands Ordinance. It was

enacted to make further and better provisions for regulating the leasing and other

dispositions of Government Land and related issues. Under this Act, only the President

can sign documents granting title. The President can and has delegated his powers to the

Commissioner of Lands. The GLA lays down the procedures the Commissioner of Lands

must follow in allocating land.

In addition, it abolished the compulsory registration required under the RDA in respect of

transactions relating to unalienated Government Land. Basically, this Act governs 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 RTA.

2.6. The Registered Land Act (Cap 300 Laws of Kenya)

The Registered Lands Act was enacted in 1963 with the aim of achieving two policy

objectives. First, it sought to enable land by Africans to be registered under the law. In

this regard it provided that ‘all land that was consolidated or adjudicated in the African

reserves and then offered to the Africans for settlement in the settlement schemes would

be registered under it.37 Secondly, it aimed at simplifying and unifying the registration

37 The phenomenon of African reserves (and indeed the RLA) owes its roots to the Native Lands Trust Ordinance. It was enacted after Africans had demanded the return of their land and expressed their insecurity with regard to the land they occupied. As can be expected, this statute was interpreted by

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process which, at the time, was spread between the above-mentioned statutes. It provided

for the conversion of a registration under any of the other statutes into a registration

under its provisions.

The policy objectives behind the enactment of the RLA were ignited by the problems that

attended the GLA, RTA and the ITPA. The GLA and RTA were limited only to the

registration of title to land. They did not provide for the procedure through which

interests in land registered under them would be conveyed. The ITPA which was meant

to serve this purpose was subsequently found not to be meritorious.

In this light, it repealed the Land Registration (Special Areas) Act save for its

adjudication and consolidation provisions. The Land Registration (Special Areas) Act

had been enacted in 1959 shortly after the enactment of the Native Lands Registration

Ordinance, both of which were focused on recognizing and registering the claims of

Natives to land under customary law

colonial courts as giving the Natives rights of perpetual possession with respect to the reserves they occupied, subject to the power of the Governor to expropriate the same for public purposes (see Kalabri v. A.G. 1938 18 KLR)

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2.7. The Land Control Act (Cap 302 Laws of Kenya)

The land Control Act was enacted in 1967 with an aim of regulating, by means of public

control, the manner in which the landowner or the interest in land is supposed to deal

with his land. It owes its origin to the Land Control Ordinance of 1944. This Ordinance

put an end to the exclusive Europeans dealing in land as was earlier envisaged by the

Crown Lands Ordinance of 1902 and 1915. It ensured that only those who were capable

of developing land could own it. This was perhaps necessitated by the fact that the

Second World War, had caused a dwindle in farm production as farms were neglected. It

was therefore necessary to take steps to ensure that land would be used for the benefit of

the country.

The land tenure committee appointed in 1941 recommended that ‘any system of land

tenure would be unsatisfactory which permitted unrestricted transfer and unrestricted use

and misuse of land.” The 1944 Ordinance, therefore, established a Land Control Board

whose consent had to be obtained before any transaction in land was seen as valid. The

Board was given power to impose conditions as to the development of land and failure to

comply with these conditions would lead to one’s forfeiture of his land. The membership

of the board comprised of the Commissioner who was the chairman, a finance secretary,

a director of agriculture and six other persons. Appeals were to the land Control Appeals

Tribunal whose decision was final. The 1944 Ordinance was only for the control of land

in the ‘white highlands.’

After Second World War, the administrators saw the African Reserves as productive

units and wanted to encourage the growing of cash crops. They therefore needed a

change from communal land ownership to individual land tenure. In advocating for this,

Swynnerton stated that Africans “must be provided with security of tenure through an

indefeasible title as will encourage him to invest his labour and profits towards

development of his farm as will enable him to offer it as security against such financial

credit as may be open to him.” The idea was further developed by the East African Royal

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Commission which suggested that for the Africans to develop their land, they needed to

own it individually.

There was therefore needed a system to control productivity of the land. The

recommendations of the two groups formed the basis of land registration and land

control. The aim was to prevent the Africans after registration from sub-dividing, selling

and living on the land without adequately developing it. These were the reasons for the

enactment of the 1959 Land Control (Native Lands) Ordinance. It provided for

establishment of Divisional and Provincial Land Control Boards without whose consent

dealings in land would be void. Under this Ordinance, all transactions in land were to be

controlled except three types of transactions: transmissions of land unless it involved

sub-division; foreclosures; and transactions made in favour of the Government of Trust

Board. Consent would not be granted to any transaction which would cause the creation

of smaller pieces of land and reduce productivity.

At independence, the provisions of the 1944 and 1959 Ordinances were incorporated in

the Kenya (Land Control) Transitional Provisions Regulations 1963. These regulations

were to serve until provisions could be made by law. These rules served from 1963 to

1967 when the Land Control Act (Cap 302) was enacted. This Act however did not

depart from the system that had earlier existed except with regard to the composition of

the Board and the application of the Act to most areas of the country. It is under this Act

that the regime of land control in Kenya is today embodied. Its salient provisions and

judicial application will be discussed in depth under Chapter Eight of this book.

It is important to note that the above-discussed Acts of Parliament are the main statutes

that largely impact on the theory and practice of conveyancing in Kenya. However, there

are other numerous pieces of legislation that in one way or another are significant to a

fuller and complete understanding and practice of conveyancing in the country. They in

particular deal with a specific aspect of conveyancing. These statutes include, amongst

others, the following:

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Sectional Properties Act No. 12 of 1987.

Physical Planning Act 1996 and Regulations, (Cap 286).

Local Government Act, (Cap 265).

Stamp Duty Act, (Cap 480).

Landlord and Tenants (Shops, Hotels and Catering Establishments) Act, (Cap

301).

Companies Act, (Cap 486)

Rent Restrictions Act, (Cap 286).

Auctioneers Act No. 5 of 1996.

Law of Contract Act (Cap 23).

The Land Disputes Tribunals Act, 1990.

The Distress for Rent Act, (Cap 293)

Land Trusts Act (Cap 290)

The relevance of these statutes to conveyancing in Kenya has been discussed herein

under the various chapters that embody this book. In conclusion, it must be noted that the

multiple statutes (more than fifty) that regulate conveyancing in Kenya are an

embodiment of many principles that, are foreign, and have their origin in the history and

traditions of England. The Acts lack uniformity due to the fact that they were enacted in

the absence of a coherent land policy and were essentially aimed at addressing specific

interests and issues at different times in history. Nevertheless, he who must understand

and practice conveyancing in Kenya must be well versed with the provisions of the entire

legal framework that regulates conveyancing in the country. Only then will one find that

there is no magic in the word conveyance.38 The relevance of studying the legal

framework behind conveyancing has been well elaborated by Kenny and Hewitson as

quoted in the paragraph below:

‘Land law, Trusts, Succession and Conveynacing- these are names to strike terror

into the hearts of students…the subjects become clearer and more interesting not

by mastering a superficial guide but by coming to grips with the intricate and

38 See supra n. 6.

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enthralling detail of each subject of property law. Very much of this law detail is

contained in statute law. The good property lawyer is framework. This familiarity

and confidence can come only from frequent reading and use of the statutes. It

would be hard to claim that anyone of these statutes is, taken as a whole, well or

coherently drafted and their study presents difficulty, but not studying them leaves

property law opaque. When statutory framework is monitored the case law

becomes more accessible. The complex picture of…property law begins to move

into focus. Soon its study and practice will be enjoyed.’39

39 P.H. Kenny & R. Hewitson, Butterworths student Statutes -Property Law, Butterworths, London, 1994, p. v

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