GROUP SIX MEMBERS

1.Michael Fortune. l250/23448/2022

2.Grace Ingabire . l250/23446/2022

3.James Mutharimi. l250/23447/2022

4.Victoria Nyawira . l250/23424/2022

5.Emmanuel Omondi . l250/23521/2022

6.Collins Omira. L250/23501/2022

7.Joan Nyakio. L250/102568/2022

8.Macyanne Nyambura. L250/23491/2022

9.Virginia Roxanne. L250/23490/2022

10.Rahab Karura. L250/23564/2022

11.James Mbugua. L250/23441/2022

LAND TENURE SYSTEMS
BACKGROUND AND DEVELOPMENT OF DIFFERENT LAND
TENURE SYSTEMS IN THE WORLD.

-In common law systems, land tenure simply refers to ‘hold’.It also
implies to a system according to which land is held by individuals or the
actual user of the land which doesn’t give rise to legal ownership.

-It determine who can use land, for how long and under what
conditions.Tenure maybe based on both on official laws, policies and
statutes( as long as they don’t contravene the higher law)

-The various land tenure systems have played a very crucial role in
shaping societies and economies throughout history as they define how
individuals and institution hold and use land.

The evolution and development can be traced through various stages;

There are various systems of land tenure including :

1. public
2. communal
3. private
4. community land.

TRADITIONAL SYSTEMS

 Traditional systems refer to long-established customs, norms and

practices within a community or culture, the practices often
 encompasses various aspects of life including land use and
ownership.
 They are normally community-centric, with decisions about land
use and tenure being made collectively by the members.
 Land ownership in many traditional societies was collectively
owned by the community or tribe and individuals may have rights
to use the land but not own it outright.
 Land is often seen as a communal asset that is held in trust for
future generation.
 This gave rise to indigenous land tenure practiced in areas such as
Native American tribes in the United States of America.
 African customary laws being recognized in Kenya under article
159 and 2 of the constitution, provides for a customary way of
ownership of land.
 Recognizing and respecting these systems is essential for
promoting cultural diversity and sustainable development.
 It is provided under article 63 of the constitution of Kenya, 2010
recognizes customary tenure system which is designated to
community land tenure. The community land Act, 2016.
 Most of the communities under the tenure include the
pastoralists in the northern parts of Kenya.

FEUDALISM

 The system mostly developed during the middle ages in Europe,

feudalism was prevalent.
  Land was granted to nobility in exchange for loyalty and military
services. Slaves worked in return for protection.
 It was characterized by hierarchical structure of land ownership
and obligations.
 At the top of the feudal was the king or the monarch who
technically owned land in the kingdom.
 Below the king were the nobles including barons and lords and
dukes who held large land grants from the king in exchange for
loyalty and military services and other obligations.
 The vassals were below the nobles, the nobles subdivided their
land holdings and grant portions of land to the vassals or knights
in exchange for similar obligations.
 Peasants were at the base of the feudal system who worked the
land and provided agricultural products and labor to the nobility
in exchange for protection and a place to live.
 Land was held by the tenants from the lords
 Land was the primary source of wealth and power in feudal
society. It was granted in exchange for loyalty, military services or
other services.
 The underlying principle of feudalism was that all land ultimately
belong to the crown.
 This aspect though declined, there are still it remains as it gave
rise to the state ownership of land or public tenure under section
9 of the land act. And managed by the NLC.
COMMUNISM/ SOCIALISTS APPROACH

 The communism society entailed the absence of private property

or land and social classes and ultimately money and the state.
 It was based on collective ownership.
  This is in practice in countries like China and Russia where land is
owned by the state or collectively owned by the enterprises or
farmers and householders lease land from the state using long-
term leases of around 20-70 years.
 This was also a case in Tanzania during the ujamaa policy, which
was a socialist idea that formed the basis of land ownership and
economic development in Tanzania where land was owned by the
state and citizens collectively worked on the farm

CAPITALIST APPROACH

 It places a great emphasis on private property rights rather than

collective approach.
 It provides for private and individual owning of land providing that
land can be privately sold, transferred and bought.
1.LAND TENURE SYSTEMS DURING THE PRE COLONIAL PERIOD IN KENYA

Pre colonial period refers to period before the British occupied Kenya and started
controlling it. Generally pre colonial period is a term used to refer to the period
which existed before colonialism.
-Land tenure refers to relationship that individuals and groups of individuals hold
with respect to land and land and kand based resources such as trees, minerals,
pasture and water.
Victoria Mumbe in an article "historical evolution of land tenure in Kenya" defines
land tenure as the rules that define how individuals gain access to land, acquire
user rights over the land either permanent or temporarily.

CATEGORIES OF LAND TENURE IN KENYA.

1.Individual land tenure
2.Communal land tenure
3.Group land tenure
4.State
5.Company

LAND TENURE IN THE PRE COLONIAL PERIOD IN KENYA

In the pre colonial period land ownership was a communal undertaking governed
by the then existing customary laws. The entire community therefore owned the
parcel of land they resided on and utility on an individual basis was subject to
acceptability of the use to the rest of the community members.
Available records in Kenya indicate that before colonialism, communities
governed land through community (informal) rules, or what is today known as
customary laws. Under this system, no individual owned land.Customary land
tenure typically includes communal rights to pastures and exclusive private rights
to agricultural and residential parcels.
Customary land tenure is -and has always been -one of the foundational elements
of the land laws in Kenya. It is not an add on to received law indeed, received or
imposed law is the add on. Received law thus needs to be adapted and adjusted
to indigenous law not vice versa, and proponents of received law should be
advancing the case for legal pluralism.
Land tenure in the pre colonial era in Kenya was based on the assumption that
every member of the community could enjoy equal access to the land belonging
to the community. The power to own was governed or determined by your
subscription; for this case membership;this meant that every member was
entitled to enjoy land rights because land ownership was communal.

COMMUNAL LAND TENURE SYSTEM.

This was the main and most prevalent land tenure system in the pre colonial
period in Kenya though not recognized in Western cultures. This is because in the
western world there is an aversion for anything communist or social, hence the
westerners refused to recognize that such tenure existed. The rebuttal of
communal land tenure was further propagated by the ethnographers who were
tasked with the job of studying African societies and this was due to the fact that
they were coming into a new society with a very strange culture to theirs and they
therefore could not comprehend the manner in which Kenyans conducted their
land ownership affairs.
Communal land tenure system is a form of land ownership where land is owned
by the whole community and utility is on individual basis. Under the
circumstance, land during the pre colonial period in Kenya was exclusively owned
the community hence no single individual could dispose off land by sale or have
exclusive rights to the land. The mutual interest of the community members
ranked higher than of any individual. The philosophy behind communal land
tenure was the justification that land was God given to all humanity and no one
could exclude others from land ownership (article by Brendah aroke). Disputes
regarding land ownership were settled while paying regard to the then existing
customary laws by chiefs and community elders without disenfranchising any
particular community member. Introduction of foreign laws disrupted existing
communal land regimes as the decision of judge Hamilton in Gwanombi Validinia
Visram reveals. In the case the judge states that; "no person can sell more than
which he himself has(an as Jibans or body of Jibans have more than a common
right to occupy and use trbal land, title which is not claimed individually or
collectively) it follows that a sale of a portion of such tribal land whether by one
or more individuals is bad and doesn't confer any title

In conclusion, land tenure system in the pre colonial era was communal and was
based on the then existing customary laws

2.COLONIAL LAND TENURE SYSTEMS IN KENYA,DEALING WITH EMERGENT

CHALLENGES AND LEGAL OBSTACLES.

Before colonialism,communal land tenure system was prevailing. With

the introduction of British conception of property,new tenure regimes
were established. That was private and crown(government)land.

The Crown Land Ordinance of 1915 broadened the definition of crown

land to include land occupied by African natives,reducing natives to
nothing but tenants. In "Isaka Wainaina v Murito,the Barth CJ upheld
the provision of 1915 ordinances citing that native tribes were tenants
of the crown.

In 1938, The Crown Land Ordinance(amendment),made

pronouncement that customary law on tenure applied solely on land
ownership in African reserves as opposed to white highlands. Launch of
the Swynnerton Plan1954 effectively hammered the last nail into the
community land casket. The Plan sought to bolster productivity through
the intensification of agricultural activity, the survey, adjudication,
consolidation, demarcation and registration of land holdings and
improved infrastructure. This was complimented by the Report of the
East Africa Royal Commission (1953-1955) which contained largely
similar findings and recommendations. Land enclosure and registration
effectively legitimized the transition from communal land ownership to
individualized land tenure. The issuance of inexpugnable titles meant
land was rendered disposable while concomitantly providing security
of tenure to landowners. The economic objectives were achieved in
that output from s

The effects of the Arab and British practices on land and the
subsequent land injustices in Kenya had detrimental consequences on
the indigenous communities during and after the period under
colonialism.They led to the permanent displacement of entire
communities and the disruption of the socio-cultural and economic life
of many communities.The practices created arbitrary ethnic-specific
boundaries (the native reserves). This generated a notion of exclusivity
of land rights by certain communities in certain areas. The communities
viewed other communities owning land in those regions as ‘foreigners’.

The British and Arab colonialists were the originators of the land
grabbing practice in Kenya. The Arabs grabbed the 10-mile Coastal
Strip. The British grabbed the 20% arable land for their own settlers.
These practices exposed entire families and succeeding generations to
landlessness.These land practices and subsequent land injustices in
Kenya also promoted inequality in land and related rights. They caused
poverty and destitution and barred Africans from owning land in the
‘white’ highlands. They also created a system of land tenure based on
alien principles of English property law, while largely neglecting the
regime of indigenous customary property law (for example, title deeds
over indigenous land inheritance practices).

The practices generated discrimination in access to land and related

infrastructure and social amenities. They promoted ethnic suspicion,
mistrust, tension and structured violent conflicts in reserves – still felt
today.

The government dealt and is still dealing with problems that emerged
due to colonial LAN tenure systems by;Redistributing land that had
been grabbed from Kenyans .Land ownership barriers were dismantled
and the everyone could own a property wherever they wanted through
individual titling .Settlement schemes were created to settle the
landless and squatters while new policies were created after
independence.

3.CONSEQUENCES OF COLONIAL LAND POLICY IN KENYA

1.Large tracts of land were declared white highlands leading to loss of

land by Africans

The white highlands is an area in central uplands of Kenya. It was

traditionally the home of indigenous Central Kenyan communities upto
the colonial period when it became the center of European settlement
in colonial Kenya between the year 1902 and 1906.The crown land
ordinance of 1902 granted this lands to Europeans meaning that only
these Europeans could own the highlands. The loss of African land led
to poverty and misery among Africans.

2.Africans were restricted to reserves which were characterised by

overcrowding, overstocking and land degradation.
There was land shortage within the reserves such as Nandi, Kiambu and
Kakamega and the overuse of the land in the reserves led to serious soil
erosion in places such as Machakos and central Nyanza. This led to
decreased yields which resulted to starvation causing loss of lives
among the Africans.

3.Led to introduction of Kipande system which restricted movements of

Africans.

The Kipande system was introduced by the British colonial rule and was
an identity document which the government used to curtail freedom of
Africans and monitor labour supply. Africans were required to wear the
Kipande around their necks like a dog collar. To Africans the Kipande
was an oppressive badge of slavery and failure to produce it when
required attracted instant punishments even incarceration.

4.It led to introduction of the poll tax which forced Africans to seek
wage employment in the settler farms in order to raise money to pay
the tax.

A poll tax is a tax levied on every adult with reference to their income
or resources. At first the revenues went to colonial government until
1919 when non Africans started to be taxed. The main reason for
application of the tax was to pull African population into capitalist
labour market. Those who could not pay the tax were introduced to the
system of forced labour such as road and building construction in order
to pay the tax.
5Led to emergence of classes within African societies

As few Africans could afford to buy land, they thus became wealthy
creating a gap between them and the majority poor. Few Africans
sought employment in the settler farms in order to raise money to pay
the tax .

6.Led to introduction of a new land tenure system/individual land

ownership.

Before colonial rule Africans owned land as a community and every

person has equal rights to the land but after colonial rule there was
introduction of a new land tenure system where land was owned
individually.

7.Brought to an end the widespread migration and settlement of

various African communities

This made the Africans were restricted to their district/ reserves.

Africans also became squatters on their own land which led to misery
and poverty.

8.Colonial land policies also subjected Africans to forced labour

This is whereby African chiefs were required to recruit workers for the
European farms. Africans were thus forced to work in those European
farms against their will
4.THE RESILIENCE OF CUSTOMARY LAW BASED ON COMMUNAL LAND
TENURE.

• First resilience of customary law based on communal land tenure simply means

the changes of the customary laws on the communal land tenure.

• What exactly brings about resilience of customary law based on communal land

tenure is that across Africa, land legislation struggles to be properly implemented

and most resource users gain access to land on the basis of local land tenure

systems. These customary laws in the recent years have had emphasis on them

being replaced by the modern tenure systems that have given way to a

recognition that land policies and laws must be build on local practice.

• The change of customary laws on communal land tenure has had major changes

across African economies and societies,including demographic growth, urbanism,

monetarization of the economy, livelihood diversification, greater integration in

the global economy and culture change. All these process have led to major

changes for local land tenure systems from communal land tenure systems. These
customary laws based on communal land tenure have been profoundly changed

by decades of colonia and post independence government interference and they

are continually adapted and reinterpreted as a result of social, economic, political

and cultural change.

Bringing the resilience of the customary law based on communal land tenure, it

brought about the concept of considering some customary laws to be changed as

we all know that due to some emerging issues of livelihoods and developments

and also growth in general as characterised by some of the communal land tenure

characteristics like;

1. Low tenure security which leads to socially inefficient resource allocation ,it

brought about different thoughts of changing the customary laws perhaps to

promote peace among individuals since the numbers were growing larger and this

is according to ( Otsuka et al, 1997).

• Some of the major changes to customary laws on the communal land tenure

included the;

1. SETTING THE SCENE.

The African continent as a whole as we know is experiencing some major

processes of social transformation and these transformations include the

population pressure that is increasing in many parts of Africa and competition over

land has been seen rising as a result. As we can note that urban settlements are

growing fast and considering the fact that the land is communally owned, cannot

add upto stopping settlement from growing hence allowing the modern rules to

cheap in and guide the land that is the land control Bill of 20zz that seeks to align

the law governing various land transactions under the land laws.

2. DEMOGRAPHIC CHANGE.

This is another factor that brought about the changes in the customary laws based

on communal land tenure in a manner that in some parts of Africa, there has been

strong demographic growth and due to this, the population density has increased
substantially and this is brought about by the fact that some of the countries

maybe occupied by desert or barren lands therefore pushing people on productive

areas and they cannot just go to another people's territories that have their own

rules therefore bringing into consideration that in such circumstances it's natural

and therefore changing of the customary laws to enable individuals to buy or sell

land on any geographical area.

3. URBANISATION.

Across Africa, urban centres are growing faster unlike in 1950 where there was

only 14.9% of the continent's population due to fear of encroaching or moving to

other communal lands that the people did not share common ancestors. If

compared to now where the population has grown to 57.9% and this is brought

about by the changes of the customary laws to modern land laws. In the increasing

urbanisation without being hindered by the customary laws has implications for

land use and tenure, but expansion of urbanisation can hinder agricultural land

use hence promoting settlement alone and therefore this is brought by erosion of

customary laws bringing about the emergence of more individualised forms of

tenure like enhancing private properties more than public properties to promote

modern land laws and to control individuals in everything they do.

4.CONFLICT.

As we all know, armed conflicts has devastated many parts of Africa such as the

Great lakes region, Sudan, Somalia,the Mano River regions,ivory Coast and many

others and the main issues here is always over land. Like the Kalenjins and the

Luos who are fighting over a land on Sondu, they each know that there are rules

that govern that border but they omit the rules because they are still relying on

their customary laws that, that land in the border was never undecided with their

ancestors whom the land was to rest upon that is whether it was to be for the

Luos or the Kalenjins but all of them are forgetting that long is the time that their

ancestors died and that rules of the customary laws have changed and the

ministry of land had done their mappings according to the land law acts. On the

other hand,armed conflicts may disrupt local land tenure systems and in this sense

contribute to the changes in customary rules and institutions. For example, this

may be linked in the case of the large scale resettlement processes that may be

associated with conflict as seen in parts of Burkina Faso large scale return of
migrants from war torn ivory Coast increased pressure on land and pushed

towards greater monetarization of land relations and the chaos generated by

wars may weaken customary or local institutions managing and administering land

rights and therefore some rules of the customary laws are usually considered to

be changed so as to maintain peace and the changes also may help in regulating

land relations. (ref. Dabire and Zongo, 2005).

CONCLUSION

The first obvious point is that, customary laws are changing. This is not new, for a

long time,ot has been recognised that, far from being static, customary

systems/laws are continually interpreted and re_adapted to fit changed economic,

social, political, cultural and environmental contexts. Again research from Benin,

Burkina Faso. Ivory Coast and Mali has documented ongoing changes of the

customary laws used to transfer land rights, both between groups and between

individuals. These changes are taking place in the context of increased competition

over land,monetarization of the economy, changes in family relations and

decades of government interventions. Customary laws such as the 'tutorat' are

being interpreted and renegotiated and have had a monetary dimension that they
did not have before ;a new arrangements like selling of the land bringing about

new practices such as use of witnesses and of written contracts.

5.INDIVIDUALISATION AS A LASTING LEGACY OF IMPERIALISM

Individualization, in the context of imperialism, refers to the impact of

imperialist practices on the identities and agency of individuals within
colonized societies. While the effects of imperialism are complex and
multifaceted, individualization can indeed be considered one of its
lasting legacies. Here's how individualization can be seen as a legacy of
imperialism:

1. Disruption of Traditional Societies:

Imperialism often disrupted traditional social structures, hierarchies,

and communal ways of life in colonized regions. This disruption led to
greater individual autonomy as people had to adapt to new
circumstances and roles.

2. Westernization and Education:

Colonial powers frequently introduced Western education and culture

to their colonies. This exposure to Western ideas, values, and
educational systems contributed to the individualization of colonized
populations as they gained access to new knowledge and worldview.
3. Economic Changes:

Imperialism often led to changes in economic systems, with the

introduction of cash crops, wage labor, and market economies. This
shift from subsistence farming or traditional economic activities to
participation in market-based systems increased individual economic
agency and decision-making.

4. Legal and Political Reforms:

Colonial administrations sometimes introduced legal and political

reforms that granted certain rights and responsibilities to individuals
within colonized societies. These reforms, while often limited,
contributed to the recognition of individuals as legal subjects.

5. Emergence of Nationalism:

In response to imperialism, nationalist movements often emerged in

colonized regions. Nationalism emphasized the rights and agency of
individuals within a collective national identity, further promoting
individualization.

6. Legacy of Resistance:

Resistance against imperialism, whether through political movements

or cultural expressions, often emphasized the agency and individual
rights of colonized peoples. These struggles had a lasting impact on the
assertion of individual identities and rights.

It's important to note that while individualization is one aspect of

imperialism's legacy, it existed alongside various negative
consequences, including cultural assimilation, economic exploitation,
and the loss of traditional ways of life. The legacy of imperialism is
complex and includes both positive and negative outcomes, which
continue to shape the societies and identities of former colonies to this
day.

6. LAND OWNERSHIP IN THE RUN TO INDEPENDENCE

In the pre-colonial period, land was owned on a communal basis, with
no individual rights. Equality in access and use of land was guaranteed
by customary rules prescribed by cultural norms. The land was
allocated to families based on their specific needs, with each family
being allocated exclusive land for residential purposes and arable use.
The colonial government introduced alien land tenure relations and
conceptual, legal, and sociological confusion in traditional tenure
systems, leading to far-reaching disruption of African customary land
tenure systems and laws.

In 1889, the East African Order-in-Council allowed colonial authorities

to exercise the substance of law in England, but only to the extent
permitted. In 1890, the Foreign Jurisdiction Act prescribed how power
of the crown could be exercised in a protectorate, and allowed Her
Majesty to control land not under any form of administration.
In 1895, Kenya was declared part of the British East African
Protectorate, but this did not benefit colonial masters as they could not
service their individual interests. In 1897, the government incorporated
the Indian Land Acquisition Act (1894) into the protectorate, but did
not provide for the resale of the land acquired.

The East African Land Regulation was enacted to secure land for
settlers, distinguishing between land in Sultan's Dominions and land
under the Protectorate. In 1901, the Registration of Documents Act was
enacted, compulsorily registering all documents relating to land, but
the definition of land was defective.

In 1902, the Commissioner promulgated the Crown Lands Ordinance to

implement the 1901 Order-in-Council. This allowed the Commissioner
to sell freehold estates in land and sell land not under Africans without
tribal Chiefs' consent.

In 1914, the Crown Lands (Access to Roads) Ordinance allowed

individuals with interests in or rights over Crown Land to use adjacent
pieces of Crown Land as roads. In 1915, the Crown Lands Ordinance
redefined Crown land to include land in occupation of natives and
reserved for the use and support of native tribes. This made natives
mere tenants, and customary laws were subordinate to British law. The
Government Lands Act replaced the Crown Lands Ordinance and
introduced a fair system for administration and registration, remedies
for defects, and a fair way of registering deeds. The Act also introduced
the English conveyance system and established Kibera slums as
settlement schemes. In 1920, the Registration of Titles Act established
the Torrens Principles of land registration, granting conclusive and
indefeasible titles to those in the register. The Devonshire White Paper
of 1923 emphasized Kenya's African identity and paramount rights. The
Hilton Young Commission recommended separate reserves for natives
and Europeans, free from encroachment. The 1930 Native Lands Trust
Ordinance implemented this recommendation, but gold was discovered
in Kakamega Reserve, leading to government acquisition of land rich in
gold without compensation.

In 1932, the Kenya Land Commission reviewed the 1930 Native Lands
Trust Ordinance and implemented recommendations through
legislation. The four orders-in-Councils divided Native areas into native
lands, temporary reserves, and leasehold areas.

The Swynnerton Plan was a government agricultural policy in Kenya

that aimed to develop farming practices, introduce cash crops, improve
infrastructure, and secure land tenure methods. It encouraged
individualization of tenure and issued indefeasible titles. The plan
involved adjudication, consolidation, enclosure, surveying, and
registration of land. The East African Royal Commission's 1955 report
also aimed to reform customary land tenure and encourage
individualization.

The Indian Transfer of Property Act (1882) introduced land tenure and
registration in Kenya between 1959 and 1965. The Land Order-in-
Council of 1960 allowed Africans to convert leaseholds into freehold,
allowing them to exercise absolute rights under freehold. However, due
to high poverty levels, only political affiliates and higher social class’s
accessed land, and most farmers were squatters. The government
implemented inheritance and traditional land law, but not
inconsistently.
In 1963, the Registered Land Act (cap300) aimed to improve title
registration for Africans and address grievances ignored by earlier legal
instruments. It individualized title to customary law and ensured
individual ownership. All titles issued were reissued, making first
registration of land privileged and requiring title deeds as proof of
absolute ownership.

7. LAND TENURE SYSTEMS AT INDEPENDENCE IN KENYA

Land tenure refers to the terms and conditions or rather the

relationships that exist between land and individuals, under which
access to land rights are acquired, retained, used, disposed of or
transferred. Land tenure ordinarily has at least three dimensions
namely people, time and space.

In Kenya at independence, land tenure systems were very complex and

diversified. They had just evolved over decades of British colonial rule.
Since 1895 when Kenya was made a British protectorate, up to 1963
when it attained its independence, several land tenures and reforms
had been established to accommodate the interests of both the whites,
the Indians and the indigenous communities by the then colonial
government. Among the tenets that controlled and regulated the use,
transfer and management of the land were;

The 1901 east African [lands] order in council –It gave effect the policies
that were set to allow the existence of the Crown Land which was held
in trust for the public. It also empowered the commissioner to make
grants and leases of Crown land on such terms and conditions as he
might think fit, subject to the directions of the secretary of state.
The 1902 crown land ordinance – it was promulgated by the
commissioner. It provided for outright sale of land and leases of 99
years [duration].

In 1915 the crown land ordinance was redefined to include ;

Land occupied by the native tribes &

Land reserved by the Governor for the use and support of the members
of the native tribes

It is the system created by the colonial regime that was inherited by the
Kenyan government upon attainment of independence in 1963.

The land tenure that evolved during the 1963 regime were the
following.

The public tenure.

The communal land tenure.

Private tenure.

Public land tenure/ Government land tenure.

The government land in Kenya at independence is the land that was

vested in the government pursuant to sections 204 and 205 of the
independence constitution as read with sections 21, 22, 23, 25 and 26
of the constitution of Kenya [Amendment] Act of 1964. The crown land
ordinance was subsequently amended and currently reflected and
embodied in the GLA [Government land Act].

The system stems from the notion that state is the owner of radical
title. i.e all land belongs to the state. Public tenure therefore,
designates the government as a private owner of the land and follows
the provisions of the crown land ordinance of 1902.

Public land was either alienated or un-alienated. Alienated land was

that had already been allocated to some governmental departments
and agencies or that which had been leased to the private companies
and certain individuals. Conversely, un-alienated land was that had not
been assigned to any government body, and it included all the land that
had not been put into use specifically by the government.

2. Customary land tenure system.

Before independence, the colonial rule did not rule out the communal
land ownership absolutely as this is very evident up to date in certain
communities.

The customary land tenure basically entailed the systems that were
used by the indigenous communities. Some of the communities, for
instance, the nilotes and the cushites who particularly practiced
pastoralism, they indulged into communal land ownership to ensure
that there was enhancement, realization and effective management
and control of the land in respect to the number of cattle each
community had.

The social transformation of the people and their philosophy ‘hunting,

gathering, herding and settled farming’ were important influencers on
the land tenure system of each traditional community.

Private land tenure

As the independent government took over control of the land from the
colonial government, private persons and companies were legally
allowed to own land individually. This meant that the owner of the land
had complete use and management authority of his/her land to the
exclusion of others.

The crown land ordinance empowered the commissioner to

promulgate the regulations on land subject to the directions of the
secretary of state. As a result the commissioner was allowed to lease
out land and grants to the private sectors and to the effect, the outright
sale of land occasioned. Up to date, the same tenure is contemplated in
our laws both the constitutional and the statutory legislations.

8. LAND TENURE SYSTEM POST INDEPENDENCE;

MAINTAINING STATUS QUO.
Kenya was colonized by the British therefore adopted their land tenure
system. According to the crown land ordinance of 1975, the lands were
given to Africans only if they worked and cultivated regularly.

POST-INDEPENDENCE

By the time Kenya gained independence, there were three formal

tenure system;

Private land

Trust land

Government land
The native areas were the one which evolved to trust lands which were
for the attainment of independence for the benefit of Africans.

During the colonial period large tracts of land was taken from the
Africans and given to the European settlers as they were superior at the
moment and the small elite group of African collaborators. This
resulted to unequal distribution of land because Africans were given
land according to the labour they provided.

However the government at that time did not implement land reforms
against land grabbing. Efforts were made to establish a comprehensive
land registration system to provide secure land tenure for Kenyan
citizens and protect their land rights. Poverty was developed due to the
social and economic inequalities (land disputes) which made the
communities to be dismantled leading to tension and occasional
violence. Some communities felt marginalized and weak as they
believed land property ensured safety and some say in the community.

The concentration of land ownership limited agricultural and

development in the rural areas therefore hindering economic
development. Unequal land tenure system greatly affected the political
state of the country because the disputes greatly intersected with
broader political issues therefore contributed to the political instability
of the country. Land allocation became a tool for political patronage
where government officials and politicians favoured specific ethnic
groups and communities.

The Land consolidation and registration mission (1965-1966) and the

land adjudication act (1968) was enacted stipulating the rights in trust
land be established and recorded.Land Tenure Act of 1969 aimed to
regularize land tenure arrangements by converting leasehold land into
freehold titles for landowners and providing legal recognition of
customary land tenure practices.

This culminated in the modification of CAP 284 to include group rights

over land especially in the nomadic pastoralist’s areas where
demarcation proved tall orders. These rights were then encoded in the
land act, aim being the maintenances of status quo in pastoralists and
nomadic areas. CAP 287 was aimed at equitable distribution of land.

The county councils were to manage the trust lands on behalf of the
local communities. The president also had power for setting part of the
trust land. The powers over land were abused therefore leading to the
enactment of the land act.

In most cases, the small land holders ended up losing their land,
although they were compensated the system largely favoured with
large tracts of land. The trust land act was repealed and the land act
replaced it. The government encouraged the formation of group
ranches to allow communities to collectively manage and benefit from
land resources. Over the years, Kenya has enacted several land-related
policies and laws to address land tenure issues, including the National
Land Policy of 2009 and the Land Laws Amendment Act of 2016.

Challenges and Controversies: Despite these efforts, Kenya’s land

tenure system has faced challenges, including land disputes, corruption,
and land grabbing. The status quo has been difficult to maintain due to
ongoing land-related issues. It is essential to note that maintaining the
status quo in land tenure in Kenya would likely face opposition, given
the historical injustices and inequalities associated with the colonial-era
land distribution. Land reform and equitable land distribution remain
important issues in Kenya’s post-independence history.

9. LAND TENURE SYSTEM UNDER THE NEW REGIME

Land TENURE system: conditions and terms followed to the accessory

of land rights, in acquired, retained, used, disposed of and transmitted.

Provided for by article 40(1) of the constitution of the right to acquire

and own land, and no permission granted to the parliament, to allow
the state or any person to deprive an owner of their property, article 40
(2)of the constitution.

Based on colonial ideals of agricultural production, land was

technologically slow and over restricted.

The swynnerton plan, came about to rescue land from customary

related ownership that were nearly, unnecessary.

Customary ownership was principled by restrictions to:

√ Free market>> land could not attain market due to communality

disagreement

√Threat in case of investment>>was only done as to pertaining the will

of the community as a whole
√Lacked incentives and security as it was held by customary rules and
regulations.

Rights towards the land were here by limited

The plan, however, objected to improve land tenure as well as

technological advancement in land production.

This was achieved by;

√Acquisition of an indefeasible tittle

√intensified agricultural production. Land was rescued from customary

to individual centered ownership.

Individual ownership thrived achieving the current regime, carrying

with it some merits

ADVANTAGES OF INDIVIDUAL LAND TENURE SYSTEM OVER

CUSTOMARY LAND TENURE

•Specialist farmer is relieved the liability of providing space to the

subsistence functioning of the land>gains authority to enjoy and use
their own land.

•Urban waged earner can freely sell his uneconomic homeland, or buy
one when need arises

•Intensified sales and purchases of land motivating private innovations

and mobility hence economic development, achieving section 66(1)of
the evidence act.
•Intensive security in terms of acquisition of other property enabling
possession and adjustment of land.

As in article 65(1), non-citizens can also acquire land, in the new land
regime though for a limited period.