How new law may solve Kenya's centuries old land question

Buckle up. A revolution is brewing, and it could come faster than its architects expected.The enactment of the National Lands Commission (Amendment) Act 2025, controversially assented to by President William Ruto on the day Raila Odinga died, is the Trojan horse that has opened gates that could resolve historical injustices that have been festering in the country for 115 years. At the same time, the amendments open a side gate to a nightmare that some experts fear could tear apart millions of families, clans, and communities, and even sour relations between Kenya, her colonial masters, and some neighbouring states - considering that Naivasha was until 1904 still a district of Uganda, and Juba and Kismayu were part of the ten-mile coastal strip. The amendments trace the original scene of crime where the first land injustices were committed by agents of the colonial government. The controversies surrounding land disinheritance started on May 24, 1887, when the British East Africa Association signed a treaty with Seyyid Bargash, the Sultan of Zanzibar. In the agreement, the sultan leased the ten-mile coastal strip running from Kipini all the way to Vanga at an annual fee of PS11,000. This translates to about Sh239 million by today's rates when extraneous factors such as inflation are factored in. It was not a bad deal for Britain to lease 1,354,000 acres of land fronting the coastline, inhabited by about 184,000 people. Even then, the 117,000 Africans residing at the coast existed as a labour pool for the 27,000 Arabs, 40,000 Asians, and Europeans, as they had no right to the land owned by their ancestors. The British East Africa Association, which preceded the Imperial British East Africa Company, was at the time collecting about PS17 million (Sh2.919 billion) as revenue in the form of taxes and exploitation of resources from the coastal strip. The hinterland was a bonus to the British, who methodically extended their dominance from Mombasa to Uganda, claiming authority over the native population. All men, beasts, plants, and mineral resources on the surface and underneath the ground had been subjects of their avarice. The people became tenants at will of the crown. The National Lands Commission Act, which has amended two clauses, now makes it possible for individuals, communities, and even county governments to file petitions for restitution and compensation arising from historical injustices dating back to 1895. It holds the potential of recalibrating the country in ways successive governments have balked at doing for over a century. The amendment of Section 14(1) provides that "the Commission shall, within five years of the coming into force of this section, on its own motion or upon a complaint by the national or a county government, a community or an individual, review all grants or dispositions of public land issued before the 27th August, 2010 to establish their propriety or legality, upon hearing all parties affected." In the event the NLC finds that the title was acquired in an unlawful manner, the Commission shall direct the Registrar to revoke it. In the event it is established that the title was irregularly acquired, the NLC shall also take appropriate steps to correct the irregularity and may also make consequential orders. However, the provision by subsection 7 that "no revocation of title shall be effected against a bona fide purchaser for value without notice of a defect in the title" has kicked off a storm among lawyers. As Nairobi-based advocate S.K. Muturi explained, the doctrine of bona fide purchaser for value without notice of a defect in the title means that the buyer innocently bought land in contention without knowing there was an illegality. "The NLC provision goes against the jurisprudence set by the Supreme Court, which has ruled that the title deed to a piece of land is as good as its roots. Any defective or illegally procured title deed cannot be validated by a claim of innocence. The buyer must conduct due diligence to ensure that the title is clean." Dr. Mwenda Makathimo, a lands and governance expert, also faulted the clause which stipulates that claims for historical injustices to the Commission must be made within a window of five years from the date the amended sections come into effect. "You cannot expect historical injustices committed in 115 years to be cleared in five years. Parliament here made a mistake." To cure this, Section 13 provides that "the Commission may, where it considers it necessary, petition Parliament to extend the period for undertaking the review specified in subsection 1." The newly introduced Section 15 defines a "historical land injustice" as a grievance which "was occasioned by a violation of right in land on the basis of any law, policy, declaration, administrative practice, treaty, or agreement." It further lists injustices which resulted in displacement from habitual places of residence and occurred between 15th June 1895, when Kenya became a protectorate under the British East Protectorate, and 27th August 2010, when the Constitution of Kenya was promulgated. The Commission will be entertaining claims that could previously not be addressed by the ordinary court system or contradicted the law prevailing at the time, or had been locked out by the statute of limitation which stipulated the period under which a case could be filed. By assenting to the NLC amendments, Ruto has set the stage for an avalanche of claims arising from land injustices emanating from colonial occupation, the independence struggle, and pre-independence treaties. Some of the most prominent cases captured include the leasing of the coastal strip by the Sultan of Zanzibar and the British, as well as the two Maasai Agreements signed in 1904 and 1910, which paved the way for the mass eviction of the Maasai to create room for settler farms and the construction of the Kenya-Uganda Railway. Following a similar script, the colonial government crafted the Laibons Removal Ordinance in 1934 to evacuate over 700 members of the Talai community from Kericho and Nandi counties to pave the way for the alienation of their land, some of which is currently occupied by tea-growing multinational companies. The Talais were condemned to the tsetse fly-infested Gwassi area in Nyanza, where they were detained for over 30 years and were only released at the dawn of independence to return to their ancestral land as squatters. They have filed petitions in Kenya and Scotland in a bid to regain their land. The County Government of Kericho has also filed a petition in Kenya to reclaim land which they contend was seized after the killing of the iconic warrior Koitalel Samoei and is currently occupied by multinational companies. Farther away in Mt Elgon, there has been a festering conflict revolving around land ownership after the indigenous Sabaot community was kicked out by the colonial government to pave the way for white settlers in Trans Nzoia in the 1920s and 1930s. Successive administrations later made half-hearted attempts to resettle the displaced peasants in Chepkitale and Chepyuk. In 1932, a group of Sabaot presented their grievances to the Kenya Land Commission, a body set up by the British to investigate land disputes. The government's failure to resettle the affected families or compensate all those who had lost their land following the scrapping of Chepyuk I and II - some of which had been converted into a national park - later exploded into a full rebellion in 2007, complete with the formation of the Sabaot Land Defence Force. This is a wound that is still festering and will be reopened in the event a petition is filed. The White Highlands were the powder keg that birthed the ten-year armed struggle mounted by the people of Central Kenya to reclaim their land. Excerpts from debates in the House of Commons illustrate the injustices perpetrated in Central Kenya, where 16,800 Europeans exclusively owned 16,500 square miles of land in Kenya's White Highlands. "...The Carter Land Commission reported in 1934 there were about 16,800 Europeans in Kenya. They were given exclusive rights to some 16,500 square miles of land, which was designated as the White Highlands, an average of one square mile each," reads the Hansard record of a debate in the House of Commons on 30 October 1958. The Africans who were uprooted from their land were later herded into concentrated villages where they lived in mud-walled shacks under heavy guard. Some families in Nyeri and Nyandarua still reside in the colonial-era villages where their grandparents were dumped after their land was annexed. In Nyeri, about 900 descendants of colonial chief Ndiuini Wamurathimi have sued the Catholic Archdiocese of Nyeri over 2,577 acres of land they claim was alienated by the church from 1915 to 1958, consequently condemning them to Hill Farm, Mathari, and Kamwenja squatter villages. The case is coming up for mention this week. Former Nyeri Town MP Wanyiri Kihoro, who served as legal counsel for the Ndungu Land Commission of 2003, believes that the amendments to the NLC Act present an opportunity to correct all historical land injustices. "We should not fear courts of justice. Even when the land consolidation was done, some colonial chiefs and their lackeys got as much as 1,000 acres each while the ordinary people got zero. It's time to right these wrongs," Kihoro says. Makathimo says Kenyans should not fear the repercussions of correcting historical injustices. "Let's face our nakedness and decide how to clothe it. Multinationals are living on land acquired unjustly and making profits. It's important to be acknowledged, and some of the profits used to benefit the victims." "For there to be truth, justice, and reconciliation, we must face the historical injustices. Even though it may not be possible to reverse some of the injustices, like reverting Nairobi back to the Maasai, it's important to acknowledge the injustice. It has happened in other jurisdictions such as Australia and Ireland. There are many remedies for injustices." Some of the injustices, Makathimo says, include reparation, compensation, and even public apology. But Muturi warns that Kenya cannot afford to pursue these historical injustices in perpetuity, for this may open many old wounds and cause social and political upheavals. "It's going to bring a lot of issues and upset legitimate expectations of landowners. It's also going to revive feuds and clanism, as much of the land has been transferred through conveyancing in what was at the time a legal system. Most property was transferred guaranteeing the right to property, which will now be compromised. It's unwise to leave it open-ended. You can't do it forever, for it will create disorder instead of order," Muturi warns.

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