the evolution of land law in kenya

Valentine D.B Wakoko

THE EVOLUTION OF LAND LAW IN KENYA

Land law in Kenya is one of the earliest divisions of law to

exist. Unlike other laws, Land Law has developed ab intra

throughout Kenya's history. Other branches of law have also

developed in Kenya but not with great magnitude as Land Law.

Looking at the law of equity for instance, Equity has developed

in Kenya but the most import and parts of it developed in

England. The maxims were developed in England and Kenya has only

advanced in how they are applied. This is not the case for land

law in Kenya because the main principles have been set out in

Kenya over time. This is why there was a need to entrench these

laws in the Kenyan Constitution (2010).

Pre colonial regime

The paper will start by first defining what the pre-colonial

period is. The pre-colonial period is that span of time before

foreign rule was established1. It is worth noting the various

1 Rutten, M.M.E.M, & Ombongi, K(2005) Kenya : Pre-colonial, Nineteenth Century New York :Fitzroy Dearborn pp4

[email protected]


groups of people that were present in the region. They

included,inter alia, Africans who are the original occupants of

the land, the Indians who came to the region because of the close

ties between the Indian subcontinent and the region, the Arabs

who came as traders, the missionaries who were spreading the

gospel and explorers who toured the world to discover hidden

treasures and territories.

During this period, the Africans in the region lived in their

traditional communities and they owned land communally. There was

no individual ownership of land. Land belonged to the community

and was held for the benefit of all the people. Everybody had

equal rights to use the land in a manner prescribed by their

culture. There was allocation of land according to specific needs

of individuals and families. Polygamous families attracted larger

tracts of land than newly established monogamous families. Land

law was traditional law and elders, sorcerers and even

witchdoctors could settle disputes arising from the use of land.

With the advent of Christianity and introduction of Islam to the

region, converts resorted to religious leaders such as Imams and

Pastors to resolve land issues among them. These pre-colonial

[email protected]


land laws were different from one community to the other because

they were purely based on culture and specific social

organizations.

1889

The East African Order-in-Councilallowed colonial authorities to

exercise the substance of law that was in force in England but

only to an extent that circumstances permitted.

1890

The Foreign Jurisdiction Act enacted in England in 1890 which was

later amended in 1913 prescribed how power of the crown could be

exercised in a protectorate, this was to be done through Orders-

in-Council. It further allowed Her Majesty to control land which

was not under any form of administration, be it native or

colonial.

1895

Kenya was declared part of the British East African

Protectorate2.

This did not much benefit the colonial masters because they were

2 Rutten, M.M.E.M, & Ombongi, K(2005) Kenya : Pre-colonial, Nineteenth Century New York :FitzroyDearborn pp5

[email protected]


not able to service their individual interests. Kenya did not

form part of Britain, it was only an administrative district far

away and the colonial masters could not access property rights

over the region.

The case of the Ionian Islandsin 18833 is a good illustration

of what the protectorate status accorded the colonial masters in

terms of dealing with land. The Crown was not capable of dealing

with land because that would interfere with the rights of the

native owners in the region. This is part of the orbiter,”where

native owners exist, it is not, of course, desired to interfere with them ; but where there

are no such owners and the land can be regarded as vacant , the object desired may be

obtained by other methods.”

The British did not have the power to issue titles to land.

1897

Through the East African Order in Council ,1897, the government

incorporated to the protectorate the Indian Land Acquisition Act

(1894) which provided for compulsory land acquisition of for the

railway and a ten mile zone on each side of the railway for

3 The British defeated the French fleet in 1809 and took over Zakynthos, Keffalonia, and Kythera. The treaty of Paris in 1815 turned the islands into the “United States ofthe Ionian Islands” under British protection who later in 1817 provided a constitution.

[email protected]


establishment of government buildings and other purposes. It is

worth noting that the Indian Act did not provide for the resale

of the land acquired. The government was thus limited in power by

this law.

The East African (Acquisition of Lands) Order-in-Council

provided for the right to resale land. The government was headed

by the Commissioner4 who was the representative of the crown.

Land acquired under the incorporated legislation (the Indian Land

Acquisition Act) was vested in the commissioner in trust for the

crown and was allowed to release it on leasehold or freehold.

In 1897 the East African Land Regulation was enacted with a key

objective of securing land for settlers. This legislation drew a

distinction between land in the Sultan's Dominions and land under

the Protectorate. The Commissioner was empowered to sell

freehold land owned by the crown which was not private property

of the sultan. For land under the Protectorate, the Commissioner

4 The head of government was the Commissioner until 1906 when it the title was changed to Governor. The Commissioner was the representative of the Crown, was mandated to implement laws passed in England and was accountable to him/her.

[email protected]


could offer certificates of occupancy which would expire after 21

years and were to be renewed for 21 years. 1n 1898 this position

shifted as the term was extended to 99 years. These certificates

were mere licenses to use land; those holding them could not sell

the land.

1901

The Registration of Documents Act5 was enacted; this was after

the experience the British had in Zanzibar. It was compulsory to

register all documents relating to land. Any document that

conferred, limited or extinguished rights, titles or interests in

land were to be registered. Definition of land in this Act was

defective; it described land by reference to landmarks such as

trees.

Crown land was defined by the East Africa Lands Order in Council,

1901, as all public land within the larger East African

Protectorate.

5 Cap 285 laws of Kenya

[email protected]


1902

The Commissioner promulgated another ordinance, the Crown Lands

Ordinance which was to give effect to the 1901 Order-in-Council.

The Commissioner was empowered to sell freehold estates in land

and sell any land which was not under Africans without the

consent of tribal Chiefs. This land was described as "waste and

unoccupied land."

1914

The Crown Lands (Access to Roads) Ordinancewas enacted and it

enabled individuals who had interests in or rights over Crown

Land to use reasonable portions of adjacent pieces of Crown land

as roads to access their portions. The Governor was also allowed

to set aside sections of Crown Land for the Construction of

roads.

1915

[email protected]


The Crown Lands Ordinance of 1915 amended the 1902 legislation.

This legal instrument redefined Crown land to include Land which

was in occupation of the natives and that which was reserved for

the use and support of the native tribes. Through this

definition, natives were rendered mere tenants because all land

belonged to the Crown. There was no more community land.

Customary laws continued to be applied but by virtue of the

Repugnancy clause, they were subordinate to the British Law.

This meant that inconsistent customary laws were void and rights

were to be exercised at the mercy of the Crown.

The only rights that were accorded to the natives were occupancy

rights which were to be exercised with close reference to the

British law lest they lost such rights.

The other major thing that the two legal instruments did was to

empower the Commissioner to sell freehold title to anybody not

exceeding 1000 acres and leasehold titles of up to 999 years.

Settlers were granted security of tenure that they had sought for

a long period of time. This also marked the material introduction

[email protected]


of English Property Law in Kenya.

Later in 1915, the Government Lands Act6 was enacted. It Replaced

the Crown Lands Ordinance (1902), which had been amended by the

1915 legislation. The main object of this Ordinance was to

regulate leading and other forms of disposal of Government Land.

It prescribed a system of administration and registration of

government land, remedies to instances of defects arising out of

the earlier registration under cap 285 and introduced a fair

system to issue and register deeds. There was a provision that

all past documents relating to government land were to be applied

in accordance with this instrument.

While the Crown Lands Ordinance of 1902 and 1915 were the formal

introduction of the English system of Property Law in Kenya the

Government Lands Act7 introduced the English way of conveyance.

At this point it is worth noting that the current day Kibera

slums were established as a settlement scheme by the Government

6 Cap 280 of the Laws of Kenya7 Ibid

[email protected]


Lands Act. The government had absolute rights over unalienated

land as well as control over terms and agreements in relation to

land. The head of government was given (discretionary) powers to

allocate land and this is the provision that was later abused by

the different individuals in this position leading to the present

day issues.

1920

Guided by the case of Pilcher vs. Rawlins8 in the United Kingdom,

the Registration of Titles Act9, 1920 was enacted. It entrenched

the Torrens Principles of land registration in Kenya. This is a

system of land title in which the register of land was maintained

by the state and a conclusive and indefeasible title was granted

to those in the register. Any certificates of ownership were to

be registered under this Act.

8 (1872) 7 Ch App259 where a vendor conveyed the fee simple estate to the plaintiff. The vendor retained the deeds and later ‘conveyed’ the fee simple to a second distinctindividual. It was impossible for the vendor to pass anything else other than the document he had. The case was decided to the favor of the second individual and this created a need for legislation that would avoid such ‘injustice’.9 Cap 281of the laws of Kenya

[email protected]


In 1923 there was a land mark ruling, in the case of

IsakaWainaina v Murito10. The Chief Justice, Barth, held that the

native tribes were mere tenants of the Crown. It was mentioned in

orbiter that the Crown Lands Ordinance 1915, the Kenya Annexation

Order-in-Council 1921and Kenya Colony Order-in-Council 1921 were

to the effect of taking away any absolute rights in land that the

natives heard.

The Devonshire White Paper, 1923, stated that Kenya was an

African country belonging to the Africans and their rights were

paramount.

In 1927 the Hilton Young Commission was appointed. The commission

reported in 1929 on matters of cohesion between East and Central

Africa and how African interests could be addressed. The

Commission recommended that there should be separate reserves for

the natives and the Europeans which were to be free from

encroachment. The 1930 Native Lands Trust Ordinance implemented

this recommendation. The Governor could grant leases of up to 33

years and licenses to the reserves. The main achievement under

this legislation was that the Governor was supposed to 10 (1922)9 KLR 102

[email protected]


compensate the reserves whenever he set aside part of the

reserve for public purposes. This was an achievement but only on

paper, the reality was experienced when gold was discovered in

Kakamega Reserve. Land rich in gold was acquired by the

government and was not compensated.

This position was later changed in 1932 when the Native Lands

Trust (Amendment) Ordinance stipulated that land could be

excluded from the reserves where minerals were discovered. The

Governor was another under any obligation to replace or repay the

land.

Another major event in 1932 is that the Kenya Land Commission was

appointed. The commission was to review the terms of the 1930

Native Lands Trust Ordinance and seek ways to service Africans

interests in land as well as settle grievances from past

transactions in land. This commission was headed by Morris

Carter. The commission made some recommendations which were

implemented through legislation. The first was the Native Lands

Trust (Amendment) Ordinance which has been discussed above.

[email protected]


The second legislation was the Crown Lands (Amendment) Ordinance

1938. This further implemented the dual policy where Europeans

were to occupy high potential areas better known as the ‘White

Highlands’and Africans were to occupy marginal lands better known

as ‘African Native Reserves’. Africans only had interests and

rights within the reserves and could not claim either of them

outside the reserves.

The next legislation to be enacted was the Native Lands Trust

Ordinance 1938 which repealed the 1930 Ordinance. The 1930

Ordinance had been amended in 1932 and 1934 and they were

rendered void by virtue of the 1938 legislation. This Ordinance

established the Native Trust Land Board. The Governor with the

approval of the Board and the Legislative Council were awarded

with the mandate to grant leasehold interests in native reserves

to foreigners. He (the Governor) was expected to make a land

available for the displaced natives in other areas. The Board was

to be consulted where more than 10 acres were to be set aside for

public purposes. Under this Ordinance State Corporations were to

acquire land and hold it in the public trust for the community

where the land is. The corporations were to operate as trustees

[email protected]


and not as real owners though most of them traded in land.

Examples of entities which engaged in these activities are the

Kenya Meat Commission and Kenya Railways.

Following the Carter Commission, the Kenya (Native Areas) Order-

in-Council 1939 was promulgated. This legislation divided Native

areas into native lands, temporary native reserves, and native

leasehold areas. It further entrenched the Native Lands Trust

Board to protect the natives’ interests.

The fifth, and final, legislation that followed Carter's

Commission was the Kenya (Highlands) Order-in-Council. Highlands

were defined; there was provision that the boundaries to the

Reserves and Highlands were to be maintained as drawn out in the

1930 Crown Lands Ordinance and the 1938 Native Lands Trust

Ordinance. This was a key piece of legislation because it put in

place the Highland Board which was to protect the interests of

the settlers

The period in between 1940 and 1950 was somehow 'silent'. Land

law was applied as prescribed by statutes.

[email protected]


1954

The Swynnerton Plan11 was published by the Government. This was

an agricultural policy aimed at further developing agricultural

practices. Cash crops had been introduced in the colony, the plan

was aimed at expanding the scale of farming through improved

infrastructure, market, weather forecast, and of course providing

secure land tenure methods. This plan

encouraged individualization of tenure and issued

indefeasibletitles.

Implementation of this plan followed a number of stages. The

first stage was adjudication; this made Customary Land Law

obsolete and ascertained individual or group rights amounting to

ownership. Consolidation and enclosure was done to thousands of

fragmented land. All high quality land was surveyed and enclosed

as well. The final stage was registration of land which was to

show the interests in land that the owner had and title deeds

were issued. At this point, land was converted into a trade item

and could be sold.

11 This was under Roger Swynnerton who was a government official under the AgriculturalDepartment. It was aimed at enabling families be self sufficient in terms of food production.

[email protected]


The plan was to detach people with their traditions and their

traditional ways of farming. This was possible because the

natives were allowed to sell their land, go into the city, and

later buy it back if they decided to go back. An assumption was

that those who went into the city and detached themselves from

traditional systems of farming could learn modern methods of

farming and increase their levels of production.

1955

The East African Royal Commission was appointed and it tabled

its report in 1955. The report worked, alongside the Swynnerton

plan, as catalysts for the reform of customary land tenure. One

of its main recommendations was individualization.

1959

The Indian Transfer of Property Act (1882) was introduced to

Kenya. The Act governed the various ways of land tenure and

registration.

1960

[email protected]


The period between 1960 and 1965 was a crucial one because of the

main activity that marked the end of colonial rule: independence.

The Land Order-in-Council of 1960provided for the conversion of

leaseholds into freehold. By virtue of this Africans were allowed

to exercise absolute rights under freehold. The legislation also

permitted Africans to acquire land in the Highlands. This was to

be done like any other trade transaction, between willing

parties. The post-colonial state could also purchase and

redistribute the land. Due to high poverty levels in the country

those who accessed this land were political affiliates and those

of a higher social class.

Most people were still squatters and the moved to the towns in

search of employment. Farmers could not access necessary

requirements such as fertilizer, seed and even credit facilities.

Credit facilities were out of reach for small scale farmers

because they lacked collateral.

Inheritance and traditional law governing land were applied once

again but not in a manner inconsistent with written law.

The government launched a project of buying and distributing land

[email protected]


among the landless to counter this problem. African farmers were

settled through such schemes. The 1962 Million Acres Settlement

Schemes and the Squatter Settlement Scheme are examples of this.

1963

The Registered Land Act, cap300, was enacted to ensure better

registration of title. This legislation was to deal with African

grievances that had been ignored by the earlier legal

instruments. Registration was to be done for Africans and

individualization of title to customary law. The main

achievement under this legislation was the element of individual

ownership and registration of land. All titles that had been

issued were to be reissued under this law. Section 143 made first

registration of land privileged; this implied that it could not

be challenged even if it was wrongfully obtained. Title deeds

issued under the Act were considered proof of absolute ownership.

The Constitution of Kenya, 1963(Independence Constitution)

This was at a time when Kenya attained independence. This

constitution was majorly comprised of the provisions made by the

Lancaster House Conference. Section 19 provided for rights over

[email protected]


property, mechanisms to be used under compulsory acquisition, and

the various avenues to seek remedy when proprietary rights are

infringed.

Regulations for agricultural land were provided under section 26

where the mandate of the Divisional Land Control Board was

mentioned. Under Section 132 the Regional assembly was obliged to

make laws to regulate the use of land. The document contained

provisions on land but they were scattered and most of them were

exceptions.

1967

The Land Control Act was enacted in 1967 and was with the aim of

directing activities on land. These activities included dividing

the land, sale, transfer, lease, mortgage and any other activity

that involved movement of interests or rights. The legislation

has not been repealed but has been implemented by the Land

Control Regulations, 2012.

1968

[email protected]


The Land Adjudication Act, cap 284 was enacted; its main purpose

was to cater for group rights. Individualization was advocated

for by the Swynnertonplan but it was not a success to nomadic and

pastoral communities. Unlike farming (cash crop farming) where a

farmer needed to have his piece of land enclosed nomadic farming

required movement of livestock in search of pasture. This made it

impossible forindividualization at these areas. Group rights were

to be registered under Land(Group Representative) Act, cap 287 to

ensure such communities have land to graze their animals.

1970

The Land Planning Act, 1970 was enacted. It repealed the

Development and use of Land (Planning) Regulation. This Act

governed how land was planned and development but was later

repealed in 1996.

1987

The Sectional Properties Act 198712 was enacted. Its main

provisions were to facilitate registration of the sectional plan

12 No 21 of 1987Cap 286 of the Laws of Kenya

[email protected]


under the Registered Land Act13, make Sectional Plans a

requirement to support titles to parts of buildings and to be the

substantive law governing the rights of proprietors having

interests in or rights over sectional properties.

1990

The Land Disputes Tribunal Act14 came into force to prescribe how

land disputes were to be resolved. It empowered various entities

and limited their powers on resolving disputes. It amended the

Registered Land Act, 1963 and was later repealed by the

Environment and Land Court Act, 2011 and the Land Registration

Act, 2012

In 1994 there was a landmark ruling in the case of Maathai vs

City Council Of Nairobi15when the Registration of Titles Act16 was

13 Cap 300 of the Laws of Kenya14 No 18 of 199015 HCCC No 72 of 1994 16 Cap 281 of the Laws of Kenya

[email protected]


applied and an indefeasible title was not subject to be

challenged. The piece of land could not be sold to an individual.

In 1996 the Physical Planning Act17 was enacted to consolidate

earlier laws which dealt with physical development in urban and

rural areas. The Act repealed the Town Planning Act18 and the

Land Planning Act, 1970.

The other legislation that came into existence was the Land Lord and Tenant Act, 1996(Shops, Hotels and Catering Establishments)19which governed the relationship between the landlord and tenant, the various types of tenancies and the legal avenues to resolve disputes. This Act has not been repealed and is still in operation to date.

1999

The Njonjo Land Commission was appointed by the government to

inquire into land law systems of Kenya. The main aim of the

commission was to come up with principles of a National Land

Policy. The Commission was under Charles Njonjo and was also

supposed to establish the position of the constitution on land

17 Cap 286 of the Laws of Kenya18 Cap 134 of the Laws of Kenya19 Cap 301of the Laws of Kenya

[email protected]


and make proposals of how to entrench land law in the legal

system.

The Ndung’u Land Commission, 2003 was appointed by President

MwaiKibaki chaired by Paul NdirituNdung’u. It is worth noting

that SmokinWanjala was the Secretary and the counsel to the

Commission was WanyiriKihoro. The commission reported on the

various ways that were used to grab land and how presidential

powers were abused in land allocation. An example was how land

set aside for the Nairobi by-pass was allocated to individuals.

There were quite a number of interesting findings which included

inter alia that, massive illegalities on land were committed

after the 1992, 1997 and 2002 multiparty elections.

2009

The ministry of lands published the Draft National Land Policy20

which was created to implement the Njonjo Commission and the

Ndung'u Commission. The policy was directed at achieving

efficient, sustainable and equitable use of land. The

recommendations were that land be provided for independently in 20 http://www.awcfs.org/new/index.php/programmes/media-a-gender-justice/36-land-reform/264-land-administration-and-land-rights-delivery-in-kenya?showall=1 last accessed 18th October 2014

[email protected]

http://www.awcfs.org/new/index.php/programmes/media-a-gender-justice/36-land-reform/264-land-administration-and-land-rights-delivery-in-kenya?showall=1




the constitution as opposed to the way it was provided for under

the larger umbrella of Property. Marginal groups including, inter

alia, children, persons with disabilities, some communities and

even, women had little or no access to land. In summary, apart

from massive violation of the provisions of the Trust Lands Act21

and the Lands (Group Representative) Act22, there was lack of

adequate legal attention and treatment for land owned by the

community, land owned by minority groups and surprisingly,

individualization undermined traditional resource management

institutions and ignored customary land rights. Following this

policy land was classified as private, public or communal land.

Sessional paper No 3 of 200923 acknowledged that there were too

many statutes dealing with land and proposed harmonization to

bring about efficiency and transparency. The government was

obliged to :

1) Repeal the land registration stipulations of the Registration

of Titles Act

21 Cap 288 laws of Kenya 22 Cap 287 laws of kenya23 http://landwise.landesa.org/record/1393 last accessed 17th October 2014

[email protected]

http://landwise.landesa.org/record/1393


2) Repeal the Land Adjudication Act24.

3) Repeal the Consolidation Act25

4) Enact a Land Registration Act26

5) Amend the Land Titles Act27

6) Amend the Registered Land Act.

2010

Kenya conducted a Referendum and a new Constitution was

promulgated. The Constitutional provisions were informed by the

Ndung'u Report, the Njonjo Commission and the Draft National Land

Policy among other documents and historical events.

Article 40 of the constitution provides for sanctity of property

rights. It acknowledges individual rights as well as rights in

association with others to acquire and own property. Limitations

are drawn against the state to ensure no legislation or state

action deprives a person of any rights over or interests in land.

Compulsory acquisition for public purposes is permitted but full

payment, or compensation must be promptly done. The final 24 Cap 284 of the Laws of Kenya25 Cap 283 of the Laws of Kenya 26 Cap 300 of the Laws of Kenya 27 Cap 282 of the laws of Kenya

[email protected]


provision of this Article is that the state enacts legislation to

ensure protection of the right to property.

Chapter Five (Article 60-72).

This section of the Constitution is wholly dedicated to Land and

Environment. There is little difference between Chapter five and

the Sessional Paper No 3 of 2009, the recommendations of the

Ndungu Report and the Njonjo Commission because Chapter 5 simply

implemented the Reports.

Article 60

Principles of land policy are spelt out and shall be implemented

through a national land policy.

Land is classified as public, community or private under Article

61 which further acknowledges that all land in Kenya belongs to

the people of Kenya. Before the 2010 Constitution land was

classified as Government Land, Trust Land or Private Land.

Article 62, 63 and 64 discusses the three classifications of

land. Most notably Article 67 establishes the National Land

Commission and Article 68 which obliges Parliament to revise,

consolidate and rationalize existing land laws as well as enact

[email protected]


legislation to govern conversion of land, govern matrimonial

property, and limit land holding acreages for private land.

In 2011 the Environment and Land Court Act28 was enacted. This

Act established the Environment and Land Court, empowered the

court and limited its jurisdiction. This Court is aimed at

ensuring land issues are determined within a period of time that

is reasonable. This Act repealed the Land Disputes Tribunal Act,

1990.

2012

On 25th and 26th April 2012 Parliament passed three bills which

were immediately assented to by the President. They are discussed

below.

The Land Act29

This Act was enacted following Article 68 of the Constitution

which required Parliament to revise, consolidate, and rationalize

land laws. This Act provides a mechanism for sustainable

28 No 19 of 201129 No 6 of 2012

[email protected]


administration and management of land. For conversion of public

land into private land parliamentary consent is required, and

helps reduce abuse of power by the president or any other

institution.

The Act clearly defines contentious terms that were confusing.

Methods of Land acquisition are mentioned to be

allocation,transmission,compulsory acquisition, settlement

programs, transfers and long term leases.

It is a provision that all other laws be construed in a manner to

give effect to the Land Act 2012 which repealed the Land

Acquisition Act30 and the Way Leaves Act31. Land mentioned under

Article 64, 63 and 62 are to be governed by this Act.

The Land Registration Act32

The Act advocates for devolution and goes even further to revise,

consolidate and rationalize legislations which provided for

registration of title to land. The process of Land Adjudication

is simplified by the Act. 30 Cap 295 of the Laws of Kenya 31 Cap 292 of the Laws of Kenya 32 N0 3 of 2012

[email protected]


Under the old law title deeds were issued under the Registered

Lands Act, theRegistration of Titles Act, the Land Titles Act and

the Government Lands Act. After enactment of this legislation,

titles issued under the Registered Lands Act and the Registered

Titles Act continued to be valid but the Registrar is mandated to

issue new titles in the prescribed form.

A titleissued under the Government Lands Act33 and the Lands

Titles Act34was not valid until it was examined and registered

afresh. 35

This Act also repealed the Indian Transfer of Property Act, 1959

and the Land Disputes Tribunal Act36, 1990.

The National Land Commission Act37

Following the establishment of the Commission by Article 68 the

Act makes further provision as to the functions and the powers of

the Commission.

33 Titles issued under this Act were those issued prior to independence. They containedthe words “indenture,” “conveyance” or “indenture of conveyance.” 34 This Act only applied to title deeds at the Coast and Lamu Island.35 Another provision was that land held on leasehold titles will revert to the government after expiry of their terms.36 Cap 303 of the laws of Kenya 37 No 5 of 2012

[email protected]


The Commission is mandated to manage public land and recommended

a national policy on registration of title.

It should be noted that the Land control Act38, the Landlord and

Tenant (Hotel, Shops and Catering Establishments) Act 1996, the

Sectional Properties Act 1987and the Distress for Rent Act have

not been repealed.

CONCLUSION

Land law in Kenya prior to the 2010 constitution was governed by

exceptions. This is the main shortcoming of the Independence

Constitution and most of the Statutes. The period after

independence recorded a decline in the development of land law in

Kenya. This is because the President at that time had absolute

power evidenced by the 1969 constitutional amendment which

further increased his powers. It was until the first multiparty

elections that Kenya has seen material development of land law.

The period between 1990 and 2009 can be said to be the Land Law

Period in Kenya’s history. The key issue that has driven the land

issues are the 1992 clashes, the 1997 tribal clashes and the 2008

38 Cap 302 of the Laws of Kenya

[email protected]


post election violence. Kenya will soon have a most elaborate

system to govern Land Law if the process of drafting new

instruments and harmonization continues.

Summary

East African order-in-council 1889Foreign Jurisdiction act(England 1890)East African order-in-council 1987

(Indian land acquisition act1894)East African land regulation 1897Waste Lands ( Seyidie&tanaland) Regulations 1897Registration of Documents Act 1901East Africa Lands Order in Council 1901Crown Lands Ordinance 1902Ole Njogo vs AG 1913Crown Lands (Access to Roads) Act 1914Crown Lands Ordinance (amended 1902)Torrens principles 1920Pilcher vs Rawlins (UK)Government Lands Act 1920Registration of titles Act 1920Kenya Colony Order-in-Council 1921Kenya Annexation Order-in-Council 1921IsakaWainaina vs Murito 1923

[email protected]


Devonshire Whitepaper 1923Kenya land Commission (Morris Carter) 1932Native lands Trust (amendment) ordinance 1932Distress for Rent Act 1938Crown Lands (Amendment) Ordinance 1938Native Lands Trust Ordinance 1938Kenya (Native Areas) Order-in-Council 1939Kenya (highlands) Order-in-Council 1939Swynnerton Plan 1954East Africa Royal Commission 19551ndian Transfer of Property Act (1882) 1959Land Order-in-Council 1960Development and use of Land (Planning Regulations)1961Million Acres Settlement & Squatter Settlement Scheme 1962Registered Land Act 1963Independence Constitution 1963Land control Act 1967Land adjudication Act 1968Land (Group Representatives Act) 1970Land Planning Act 1970Agricultural Land Act1980Sectional Properties Act 1987Land Disputes Tribunal Act 1990Maathai vs City Council of Nairobi 1994Land Lord and Tenant Act, 1996(Shops, Hotels and CateringEstablishments)Physical Planning Act 1996Njonjo Land Commission 1999

[email protected]


Ndung’u Land Commission 2003Draft National Land Policy 2009Sessional Paper No 3 2009Distress for Rent Rules, 2010The Constitution of Kenya 2010Environment and Land Court Act 2011Land Registration Act 2012Land Act 2012 National Land Commission Act 2012Land Control Regulations 2012

REFERENCES

Aketch, J.M. (2001) Rescuing Indigenous Tenure from the Ghetto of Neglect Nairobi:Acts press

Ghai, Y.P&Mcauslan, J.P.W.B (1970) Political Law and Public Change in Kenya: A Study of the Legal Framework of Government from Colonial Times to Present Nairobi: Oxford University Press

Government of Kenya, (2007) Kenya Vision 2030Nairobi: Government Printer

Government of Kenya (1963) the Constitution of Kenya Nairobi: GovernmentPrinter

Government of Kenya (2010) the Constitution of Kenya Nairobi: GovernmentPrinter

[email protected]


Juma, C. &Ojwang,J.B (1996) In Land We Trust: Environment, Private Property and Constitutional Development Nairobi: Initiative Publishers

John, B. (2008) Kenya Land Policy: Analysis and recommendations.

Kameri-Mbote, P., Odote, C., Musembi, C. &Kamande, W., (2013) Ours by Right: Law, Politics, and Realities of Community Property in Kenya Nairobi: Strathmore University Press

Ndungu Land Commission (2003)

Njunguna, K. H.&Mbaya, M (1999) ,An institute of survey in KenyaInitiative

NjonjoLand Commission (1999)

Odote, C. (2010) Retracing Our Ecological Footsteps: Customary Foundations For Sustainable Development And Implications For Higher Education In Kenya

Odote, C. The Legal Land and Policy Framework Regulating Community Land In Kenya an Appraisal Nairobi: FreidrichEbertsTiftung

Ogolla, B., & Mugabe,J. Land Tenure Systems and Natural Resource Management

Okoth-Ogendo, H.W.O., (1989) Some Issues of Theory In The Study of Tenure Relations in African Agriculture Nairobi: African Journal of the International African Institute

Okoth-Ogendo, H.W.O., (2002) The Tragic African commons Nairobi

Ostrom, E. (1990) Governing the Commons: The Evolution of Institutions for Collective Action Cambridge: CambridgeUniversity Press

Rutten, M.M.E.M, & Ombongi, K(2005) Kenya : Pre-colonial, Nineteenth Century NewYork :Fitzroy Dearborn

Sessional Paper No 3 of 2009 on the National Land Policy

[email protected]


The Report of the World Commission on Environment and Development(WCED) (1987), Our Common Feature New York: Oxford University Press

[email protected]