This post focuses on land tenure and systems in Kenya an issue that has affected the Maasai pastoral community especially in Kajiado.
Land tenure is divided in to three phases, namely:
- Pre-colonial Kenya
- Colonial period
- Post independence
Land tenure refers to the manner in which individuals or groups of people within a community or society hold or enjoy rights of access to land.
Land remains the most important means in production and the main stay of the economy is agro-based to the rising population, the question of access to land for purposes of subsistence arises.
During this time the philosophy of land ownership was that land was God given resource to all humanity and no one had power of exclusion.
Land was owned by the community under the;
- Community land tenure
- Family land tenure
Every member of a community or society was considered to enjoy equal access to land belonging to such a community, no individual could be exclude others or could any dispose such land by way of sale, community interest overload the individual interest.
Land enjoyment was outlined and enforced by members or selected members with the community, there were organized units of property holding based on families and clans in the event of dispute in the community, elders played the role of dispute resolution.
Every member was obliged to defend and ensure control of the community land so that it remained in the hands of the community not to the strangers.
The mode of life determined the usage of land resource in the community for example pastoralists, fishermen, hunters and gatherers. There existed common rights for example grazing areas, pasture, shrines or religious grounds.
The introduction of foreign system of land is most significant because it had far reaching consequences and these are still part of the problems that the country is trying to resolve to date.
During the colonial period the colonialists transferred their system of land adjudication for their own benefits.
Individual land tenure was introduced which was deemed to bestow security of an individual by having a person registered as a sole proprietor. This was expected to boost the morale of the individual towards developing property.
This process resulted into lots of people who were not registered as proprietors became landless and thus never ending dispute to ownership emerged in certain areas.
The newly established independence state continued with the process of land consolidation and identification and registration.
During the negotiation for independence Lancaster Conference, the issue of property rights were discussed in the government conceding to letting the settlers remain because they had invested heavily, their lands were discriminated as trust land which were vested in the county council.
There was also the issue of governments which retained the ultimate title of land, it has power to affect ownership or enjoyment or the retaining of that land.
According to the doctrine of tenure, all land is owned by the state and it is held by its citizens as tenants.
Registration of Titles
The registration of titles is not an event but it is a process, its two main objectives is to assure title and facilitate conveyancing.
Goals of Registration
- Achieving security of tenure – This is the security which gives one a right to indemnity from the government, the security of the charge, the mortgage and the lessee. The purchaser of a piece of land from a proprietor on the register should have the commercial evidence in the transaction.
- Reduction of unnecessary litigation – This is achieved through registration in that size the owner are determined. This enhances survey and arbitration-once registration has taken place one may transact or settle on his land without fear of being sued.
- Prevention of refragmentation of land into valueless pieces of land – In regard to refragmentation one needs permission under the land control act.
- Facilitation of tax Administration -Registration enables the government to identify the person against whom to levy a tax or a rate regarding a parcel of land, as the land transaction has to be registered one can follow up a sale of land and tax it.
- Administration of loan systems – The principle of security of titles makes borrowing of money an easy matter.
- Enabling easy and effective conveyance
Acquisition of Property
- Possession – He who claims property has his own and also possess it may get title to its ownership by law. Possession is prima facie, basis for certain remedies, and also can confer a good title on another even though he/she has no title.
- Adverse possession – This is the creation of a right over the lapse of time, if a person in it acquires possession of land over a period of twelve years without interference he may be recognized as a true owner.
- Agreement – Property can be acquired by an accepted proposal communication between two or more parties of a common intention.
- By inheritance – This is the passing of certain rights from one person after his death to the other through succession.
- Prescription – A person who has been enjoying an interest in land in a period of twenty years obtains ownership interests.
- Ownership and Possession- The ideal of ownership developed over long period of time with growth of civilization when people began to thinking in terms of mine and thine.