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The Settlement of Land Disputes in Kenya — an Historical Perspective

Published online by Cambridge University Press:  11 November 2008

Simon Coldham
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Extract

The nature of the boides responsible for administering justice to Africans, and for settling disputes between them, was the subject of continual and sometimes heated debate in colonial Kenya, and indeed elsewhere in British Africa. Nor have the old controversies completely lost their relevance in contemporary independent African states, as recent moves to reform the system of courts in Zimbabwe have clearly shown. Nevertheless, the debate has a rather timeworn air about it today, the arguments a tired familiarity which obviates the need to rehearse them in detail. They tend to centre on certain key issues: the composition, procedure, and administration of the courts, and the appellate system.

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Articles
Information
The Journal of Modern African Studies , Volume 22 , Issue 1 , March 1984 , pp. 59 - 71
Copyright
Copyright © Cambridge University Press 1984

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References

page 59 note 1 A 1981 Act provides for the establishment of Village Courts and Community Courts in Zimbabwe. A system of Traditional Courts has existed, not without controversy, for a long time in Malawi.

page 60 note 1 Ghai, Y. P. and McAuslan, J. P. W. B., Public Law and Political Change in Kenya (London), 1970;Google ScholarMorris, H. F. and Read, J. S.Indirect Rule and the Search for Justice (Oxford, 1972);Google Scholar and Phillips, A., Report on Native Tribunals (Nairobi, 1945).Google Scholar

page 60 note 2 Traditional African societies in Kenya were acephalous and did not have chiefs in the sense that they existed in neighbouring Uganda.

page 62 note 1 The Kadhis' Courts are retained and enjoy a limited jurisdiction in Muslim personal matters.

page 63 note 1 Another curious hangover is the requirement in the Judicature Act of 1967, section 3(2), that civil cases should be decided ‘according to substantial justice without undue regard to technicalities of procedure and without undue delay’ where one or both parties are subject to customary law.

page 63 note 2 Reform of the law, like the reform of the courts, has generally proceeded on English lines.

page 63 note 3 For a comprehensive treatment of this period, see Sorrenson, M. P. K., Land Reform in the Kikuyu Country (Nairobi, 1967).Google Scholar For a general discussion of the effectiveness of the land reform, see Coldham, S. F. R., ‘Land Tenure Reform in Kenya: the limits of law’, in The Journal of Modern African Studies (Cambridge), 17, 4, 12 1979, p. 614.Google Scholar

page 64 note 1 However, corruption reached such a proportion in Fort Hall that the whole area had to be re-adjudicated after five years' work.

page 64 note 2 Much of the following discussion relies heavily on the author's fieldwork in Kenya, mainly in Nyanza Province, in the mid-1970s.

page 64 note 3 Before the passing of the land Adjudication Act of 1968 the Committees consisted of at least 25 members, apparently on the spurious grounds that this reduced the chances of corruption.

page 65 note 1 In one adjudication section studied by the author, only 28 of the 131 objections lodged with the Adjudication Officer had previously been heard by both the Committee and the Board.

page 66 note 1 At the end of 1974, only 12 appeals had been heard and there were more than 600 pending.

page 66 note 2 Similarly, the system for the control of land transactions relies entirely on administrative bodies, and it is specifically provided that decisions of the land control boards at all three levels shall be final and not questioned in any court.

page 66 note 3 Report of the Mission on land Consolidation and Registration in Kenya, 1965–1966 (Nairobi, 1966). The reforms were largely embodied in the Land Adjudication Act of 1968.Google Scholar

page 68 note 1 Ibid.

page 68 note 2 For a full discussion of the legal issues involved, see Coldham, S. F. R., ‘The Effect of Registration of Titles upon Customary Land Rights in Kenya’, in Journal of African Law (London), 22, 2, 1978.Google Scholar

page 69 note 1 The High Court will hear all cases where the matter in dispute is £25,000 or more, a very limited jurisdiction.

page 69 note 2 Where there are no elders or the parties cannot agree, the District Commissioner appoints the Panel.

page 70 note 1 Thus, Charles Njonjo, Minister for Constitutional Affairs, accused the lawyers of deliberately stirring up litigation, and painted this picture of their activities: ‘They come into the law courts and use legal jargons[sic.], confuse everybody and then they go away and the parties in question do not know what has happened’ National Assembly Debates (Nairobi), 1981, col. 1800. Interestingly, one M.P. Pointed out the inconsistency of Njonjo's views with those the expressed in the debate on the Magistrates' Courts Bill in 1967.Google Scholar