Analysis: How to resolve the land question at the Coast

For many years, the land question has been a perennial problem at the Coast and a reason for disgruntlement.

The genesis can be retraced to the advent of the Arabs and their illicit slave trade as early as the 9th Century AD. This engendered unjust occupation of coastal land whereby the indigenous people were forced to retreat to the hinterland to escape the dreaded trade.

This was later reinforced by the provisions of the Land Titles Ordinance Act of 1908 that enabled registration of land based on ‘proof’ of ownership.This anomaly was never corrected at independence in 1964 hence the prevalence of absentee landlords.

The post-independence period escalated the situation with the introduction of politically-elite landlords.Thus the locals became squatters either by returning to their Arab-registered lands or being surrounded by the large scale elitist land alienation.

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Access to land by the locals was confined to the ecologically-marginal hinterland otherwise referred to as nyikaland – dry, low accessibility, and prone to infestation by pest and disease vectors.

Pre-colonial legislation

Two pre-colonial pieces of legislation are responsible for the ever ending squatter problem at the coast. These are the Land Titles Ordinance of 1908 which later became the Land titles Act in independent Kenya and the Mazrui Trust Land Act Cap 289 of 1912.

The enactment of the Land Titles Ordinance in1908 by the British gave the residents at the coast region only six months within which to lay claims with the recorder of titles in Mombasa for purposes of being issued with title deeds.

Unfortunately by this time, most of the coast indigenous communities were still hiding in the Nyika Plateau. The locals returned to their native land after the total abolition of slavery only to find that their land had been given away to foreigners under the land titles ordinance of 1908.

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At independence, instead of the Constitution declaring these titles illegal, a constitutional clause was inserted in our first independence Constitution which declared that all title deeds given at the coast prior to independence shall be deemed lawful and valid.

Sadly, this meant that the coast people gained independence without their land.

To address this challenge, we propose to amend the constitution and insert a clause declaring that all title deeds issued at the coast region prior to independence and, more particularly, under the land titles ordinance of 1908 be declared public land for purposes of settling the locals who are the rightful owners.

By an agreement of 21st March 1912, the British Government gave the Mazrui family about 10,000 acres of land in Kilifi County running from Kuruwitu to Watamu and bordering the Wanyika reserve. Pursuant to this agreement, the British government gave the Mazrui family certificate of title no. 409 of April 4, 1914.

The same year, the British government enacted the Mazrui Land Act Cap 289 of 1914 specifically to protect the interests of the Mazrui at the expense of the locals.

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The British did not consider the interests of the locals who it regarded as mere slaves with no right to own land. Since then, the locals have lived as squatters on this land.

In 1989, the Government of Kenya repealed the Mazrui Land Act for purposes of settling the squatters. However, in 1991 the heirs of Mazrui went to court to challenge the government's decision.

After a 23 year court battle, judgement was entered in favour of the Mazrui family. Currently, 10,000 families living on this land which is their ancestral land are on the verge of being evicted.

To address this challenge, we recommend that the constitution be amended by inserting a clause declaring that all Mazrui land as public land for purposes of settling local people.

Apart from the historical injustices meted on the people of coast through the land titles ordinance and the Mazrui land Act, other historical injustices occurred before and after independence.

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Our progressive Constitution of 2010 indeed addressed this concern in article 67 by requiring the National Land Commission (NLC) to investigate and adjudicate claims of historical land injustices. Section 15 of the NLC Act provides that the commission was to put in place appropriate legislation to effectively discharge this mandate.

This process of coming up with the legislation was initiated, went through public participation, but never saw the light of day after the draft proposed legislation was included to be part of the Land Laws (Amendment) Bill of 2015. 

This watering down of a constitutional provision into a clause of another law reflects the lack of good will to redress these injustices.

To fully address the challenge of historical land injustices at the Coast and other parts of the country, we propose the abolition of the National Land Commission and instead establish Eight (8) Regional Land Boards with each regional government having its own land board. 

These regional land boards will have the powers and functions as those currently being enjoyed by the present National Land Commission, and more particularly, the powers to investigate title deeds and historical land injustices. This will ensure that the land question at the Coast is speedily resolved.

Mr Kingi is the governor of Kilifi County and chair of the devolution at the COG.

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Land RowNational Land CommissionCoast Land Problems