Published online by Cambridge University Press: 28 July 2009
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.
1 Only the briefest outline of the historical background to the land consolidation and registration programme is given here. Readers are referred to Sorrenson, M. P. K., Land reform in the Kikuyu country, Nairobi, 1967.Google Scholar
2 Swynnerton, R. J. M., Aplan to intensify the development of African agriculture in Kenya, 1954, s. 13.Google Scholar
3 East Africa Royal Commission, 1953–1955, Report, Cmnd. 9475, 1955, Ch. 23.
4 Report of the Working Party on African Land Tenure, 1957–1958, 1958.
5 Ordinance No. 27 of 1959, later renamed the Land Registration (Special Areas) Ordinance.
6 Both under the Ordinance and under its successor, the Registered Land Act, 1963, succession to registered land continued to be governed by customary law.
page 92 note 1 Cap. 300 (Laws of Kenya 1964), s. 165 and Sched. It contains much more detailed substantive provisions than the Ordinance which it replaced.
page 92 note 2 Cap. 283 (Laws of Kenya 1964).
page 92 note 3 Cap. 284 (Laws of Kenya 1970), Sched. 1. As land adjudication today is normally conducted in accordance with this Act, reference will only be made to the Land Consolidation Act where there is a significant difference between the two Acts.
page 92 note 4 “Increased emphasis will be given to the land adjudication and registration programme, for the completion of this procedure is felt to be an important pre-condition for rapid agricultural development.” Republic of Kenya, Development Plan, 1970–1974, s. 8. 8.
page 93 note 1 Wilson, G., Luo customary law and marriage laws customs, Government Printer, Kenya, 1961, 5 ff.Google Scholar
page 93 note 2 The brief description that follows is derived in part from various written sources (including Wilson's book), but mainly from discussions with Luo people on Nyabondo.
page 94 note 1 See generally Cotran, E., Restatement of African Law 2: Kenya II: The Law of Succession, London, 1969.Google Scholar
page 94 note 2 G. Wilson, op. cit., 75.
page 95 note 1 Report of the Kenya Land Commission, Cmnd. 4556, 1934, s. 1105.
page 95 note 2 It is outside the scope of this article to discuss earlier (unsuccessful) attempts on the part of he government to consolidate holdings in East Kadianga.
page 96 note 1 At a mass meeting held by the Provincial Commissioner in East Koguta some time in 1963 the people, not wholly surprisingly, voted unanimously in favour of land adjudication.
page 96 note 2 An evaluation of the work of the committee and the way in which disputes are settled is outside the scope of this article.
page 96 note 3 S.6(1).
page 96 note 4 S.9.
page 96 note 5 Although this is strictly the task of the recording officer, such an officer was never appointed for East Koguta, his duties being carried out either by the demarcation officer or by the executive officer.
page 96 note 6 Land Adjudication Act, 1968, s. 20 (b).
page 97 note 2 Ibid., s. 23 (2) (a). The Land Consolidation Act, s. 15 (2) (a), provides for the recording of the name of the person “whose right, in the opinion of the Committee or Arbitration Board, should be recognised as ownership”. It is doubtful whether the difference in wording is very significant, though it has been contended that the provision in the Land Adjudication Act, 1968, is designed to preclude the grant of land to a person who has never used the land or otherwise exercised his rights over it: Simpson, S. Rowton, Land law and registration, Cambridge, 1976, p. 658.Google Scholar
page 97 note 3 Registered Land Act, 1963, s. 27 (a).
page 98 note 3 Land Adjudication Act, 1968, s. 23 (2) (e). The Land Consolidation Act, s. 25 (2) (c), further provides for the recording of any restriction on the power of the landowner or any person having an interest in the land to deal with the land or his interest. It was probably not felt necessary to include a similar provision in the Land Adjudication Act, 1968.
page 98 note 4 “It is … a cardinal principle of adjudication that it recognises and confirms rights which actually exist.” Republic of Kenya, Report of the Mission on Land Consolidation and Registration in Kenya, 1965–1966, para. 161.
page 98 note 5 G. Wilson, op. cit., 57.
page 98 note 6 Report of the Working Party on African Land Tenure, 1957–8, 1958, para. 25.
page 100 note 1 The effect of the Registered Land Act, 1963, s. 101 (3) and (4) is that not more than five persons can be registered as co-proprietors.
page 100 note 2 Land Adjudication Act, 1968, s. 20 (c). “… the committee has a positive duty to protect the interests of absent landowners or people under a disability, e.g. minors, persons of unsound mind or very old people who are generally incapable of pressing their claims.”: Republic of Kenya, Ministry of Lands and Settlement, The Land Adjudication Act. A handbook for the guidance of officers of the Land Adjudication Department, 1970.
page 100 note 3 Land Adjudication Act, 1968, s. 20 (d).
page 101 note 1 “Committees have … been prone to neglect interests in land which amount to less than ownership despite every effort made to safeguard them under the law.”: Republic of Kenya, Report of the Mission on Land Consolidation and Registration in Kenya, 1965–1966, para. 163.
page 101 note 2 Their failure to deal adequately with the right of jodak and levirs, with clan land, with the so-called “redeemable sales” of the Kikuyu, and with other customary institutions can be attributed to the same reasons.
page 101 note 3 One writer reports from the Kisii District that land adjudication committees were required to act too hastily, with the result that “… many customary rights are inevitably ignored.”: Wilson, R. J. A., The economic implications of land registration in Kenya's smallholder areas, University of Nairobi, Institute for Development Studies, Staff Paper No. 91 (unpublished), February 1971, 8.Google Scholar
page 101 note 4 For example, when the person recorded in the adjudication record as the owner of a piece of land subsequently died or sold the land, no amendment to the record would generally be made.
page 102 note 1 A person aggrieved by a committee decision may complain to the local arbitration board. When the adjudication record is published, a person may raise an objection before the adjudication officer and may appeal from the officer's decision to the Minister: Land Adjudication Act, 1968, ss. 21, 26, 29. Land suits are stayed during the land adjudication process: ibid., s. 30.
page 102 note 2 Registered Land Act, 1963, s. 159 (1).
page 102 note 3 E.g. the English Land Registration Act, 1925, s. 82 (1), (3) (a).
page 102 note 4 s. 143 (1).
page 103 note 1 Sorrenson, op. cit., 107.
page 103 note 2 Report of the Mission on Land Consolidation and Registration in Kenya, 1965–1966, para. 274.
page 103 note 3 This was made clear by the Court of Appeal for East Africa in the classic case, The District Commissioner, Kiambu v. R. and others, Ex parte Ethan Njau  E.A. 109 (C.A.).
page 103 note 4  E.A. 227.
page 104 note 2  E.A. 388.
page 104 note 3 Above.
page 104 note 4 Land Adjudication Act, 1968, ss. 23 (2) (e) and 23 (3) (c). Virtually identical provisions are to be found in the Land Consolidation Act (Cap. 283), s. 15 (2) (b) and s. 24 (1).
page 104 note 5 Registered Land Act, 1963, s. 11 (3).
page 105 note 2 Registered Land Act, 1963, s. 46 (1) (c); even the period of notice is not certain, since it is not wholly clear that the deemed periodic tenancy is a periodic tenancy “created” by this subsection, nor what the period of a periodic tenancy should be where no rent is payable. But for the absurd fiction introduced by the Registered Land Act, 1963, s. 11 (3), the right of occupation could only have been determined in accordance with its duly recorded terms.
page 105 note 3 Above.
page 105 note 4 Land Adjudication Act, 1968, s. 23 (2) (e).
page 106 note 1 This view seems to be supported by the decision in Esiroyo v. Esiroyo and another, above.
page 106 note 2 Registered Land Act, 1963, s. 27 (a).
page 106 note 4 S. 70 (1) (g). One of the people responsible for the drafting of the Registered Land Act, 1963, admits that this provision is not easy to understand and explains that this is why the Malawi Registered Land Act 1967, s. 27 (f), reverts to the English wording: Simpson, op. cit., 500.
page 106 note 5 Republic of Kenya, Ministry of Lands and Settlement, The Registered Land Act 1963. A handbook for the guidance of Land Registrars, June 1969, 16.
page 106 note 6 Simpson, op. cit., 483.
page 106 note 7 S. 126 (1). When a person acquiring land is described in the instrument of acquisition as acting in a fiduciary capacity, he must be registered as holding the land “as trustee”.
page 107 note 2 Ibid., s. 39 (2). One of the persons responsible for the drafting of the Act has recently recommended that, whenever the Registrar becomes aware that any registered interest is affected by a trust, he should be empowered to protect such interest in such manner as he sees fit. While admitting that it is generally undesirable to expect the Registrar to police the interests of beneficiaries, the writer feels that such a step may be necessary in an unsophisticated community with little access to professional advice: Simpson, op. cit., 580–1. This view implicitly endorses the courts’ approach to “customary trusts”.
page 107 note 3 The courts are empowered to apply equitable principles by virtue of the Registered Land Act, 1963, s. 163.
page 107 note 4 Hussey v. Palmer  3 All E.R. 744 (C.A.), at 747.
page 107 note 5 Mungora Wamathai v. Murogi Mugweru, High Court of Kenya at Nyeri, Civil Case No. 56 of 1972 (unreported).
page 108 note 1 E.g. Joseph Gathogo Gathagu v. Njuguna Gathagu, High Court of Kenya at Nyeri, Civil Case No. 35 of 1973 (unreported).
page 108 note 2 E.g. James N. Njaga v. Kahungu Kimamu, High Court of Kenya at Nairobi, Civil Case No. 1472 of 1971 (unreported).
page 108 note 3 E.A.L.J. 68. In effect this is a direction to district land registrars to accept for registration court orders of the kind indicated.
page 109 note 1 See Esiroyo v. Esiroyo and another, above.
page 109 note 2 The Land Registrar is empowered to enter restrictions “for the prevention of fraud or improper dealing or for any other sufficient cause”: Registered Land Act, 1963, s. 136 (1).
page 109 note 3 The land register is compiled directly from the adjudication record and, broadly speaking, mirrors it.
page 109 note 4 The amendment of the Registered Land Act, 1963, s. 143 (1) so as to enable the courts to order rectification of the register where first registration had been obtained by fraud or mistake would not have such a drastic effect; in particular, it would not enable the courts to order rectification in the sorts of cases discussed in this part.
page 109 note 5 See e.p Ernest Kinyanjui Kimani v. Muiru Gikanga and another  E.A. 735 (C.A.).
page 110 note 1 Whichever approach is adopted, it is hard to see how the courts could be justified in giving effect to “rights” not recorded during land adjudication.