How and the effects of colonial and post colonial administration greatly

interfered with the traditional land tenure system

Upon arrival of the British Colonial administration in Kenya at around 1895, where
Kenya was established a protectorate, the colonial did not acknowledge the traditional
land tenure system where many communities owned huge tracks of land in their
respective regions based on tribe.
They did have the view of that Africa being a dark continent which was truly a
wrong perception to us Africans, that us owning land on a communal basis did not
align with their capitalist system where land was held by individuals and the Crown
had the radical title of land in their jurisdiction.
The major way in which the colonial administration took land from the communities
was by a way of forceful grabbing of land and forceful eviction of land which led to
the emergence of squatters on their own land.This move was done with the aim of
creating more accommodation to the white settlers who were flooding Kenya on the
lands of the local communities.
As to the post colonial period truly the adverse effects of the disruption of the
traditional land tenure system by the British Colony continued to ravage this system
in that there land issues was not recognized and fully resolved, which as a result did
create grave land injustices to the affected communities
This led to the emergence of the National Land Policy, Sessional Paper No. 3 of
2009. in which under section 3.6.2 which addresses historical land issues as follows;
3.6.2 Resolution of Historical Land Injustices
178. Historical land injustices are grievances which stretch back to colonial
land administration practices and laws that resulted in mass
disinheritance of communities of their land, and which grievances
have not been sufficiently resolved to date. Sources of these
grievances include land adjudication and registration laws and
processes, and treaties and agreements between local communities
and the British. The grievances remain unresolved because
successive post independence Governments have failed to address
them in a holistic manner.
179. The Government shall:
(a) Establish mechanisms to resolve historical land claims arising in
1895 or thereafter. The rationale for this decision is that 1895 is
the year when Kenya became a protectorate under the British
East African Protectorate with the power to enact policies and
laws under the Crown. It is these colonial practices and laws
which formed the genesis of the mass disinheritance of various
Kenyan communities of their land;
(b) Establish a suitable legal and administrative framework to
investigate, document and determine historical land injustices
and recommend mechanisms for their resolution;
(c) Review all laws and policies adopted by post independence
Governments that exacerbate the historical land injustices;
(d) Establish suitable mechanisms for restitution of historical land
injustices and claims; and
(e) Specify a time period within which land claims should be made.
Gains from the Promulgation of the Constitution of Kenya 2010 and Land Laws
in Addressing Historical Land Issues

The colonial (British) and post-colonial l(after independence) and administration in

Kenya disrupted traditional resource management systems where land in the past was
truly owned by different communities hence the land was held in a community-
based approach.
Naturally and traditionally many of our communities in Kenya and t Africa at large
had the communist idea that property was to be held or owned by a community as a
whole as opposed to the capitalist approach where they greatly believed that property
cannot be owned by a large group of people since these would be contravening the
exclusionary nature of property , leading to widespread land insecurity, dispossession,
and inequality.
Community-based approach was greatly advocated by the Ubuntu theory in which
under Nyasha Mboti’s article; May The Real Ubuntu Stand Up. The article stated
clearly that in Africa one cannot survive on their own, in that they need the
community at large to survive hence stating in simple terms “I am because we are “
The Constitution of Kenya 2010 and subsequent land laws introduced trans formative
reforms to rectify these historical injustices. Below are key gains from these legal
frameworks:

1. Acknowledgement and Protection of Community Land Rights

The Constitution of Kenya under article 60. states clearly the principles in matters
and way land in Kenya is to be handled, such as security to land rights . Article 63
of the constitution read in accordance with the Community Land Act (2016)
formally recognized community land as a distinct category, empowering indigenous
communities to register and manage their ancestral lands through customary
institutions . This countered colonial-era practices that converted communal lands into
state-controlled or private holdings, thereby restoring legal certainty and
autonomy(freedom) to traditional systems.

2. Establishment of the National Land Commission (NLC)

The National Land Commission,is established under Article 67 of the Constitution,
decentralized land governance and addressed historical injustices by investigating
illegal land allocations and recommending restitution and to monitor and have
oversight responsibilities over land use planning through out the country. This
institutional framework reduced centralized corruption and promoted equitable land
redistribution.

3. Enhanced Gender Equality in Land Ownership

Article 40 read in accordance with article 27 of the Constitution and the Land Act
(2012) prohibit gender discrimination in land ownership, ensuring women’s equal
rights to acquire and control land . This reform rectified post-colonial disparities
where customary laws often marginalized women in land access.

5. Limited Ownership of land to foreigners

Under the new constitution of Kenya article 65(1), it clearly states that a person who
is not citizen may hold land on the basis of a leasehold tenure only which will granted
on time limit of 99 years maximally. The drafters of the constitution had the view that
the communities were to be given the first priorities in matters of land ownership
because they were the indigenous people in the country as compared to the foreigners.

4.Establishment of Specialized Environment and Land Courts

The Environment and Land Court Act (2011) gave effect to article 162(2b) which
states that parliament shall establish courts with the status of the High Court to hear
and determine disputes relating to environment and tittle to land established
specialized courts to expedite land dispute resolution . These courts integrate
traditional conflict resolution mechanisms, addressing the inefficiencies of colonial-
era judicial systems that perpetuated tenure insecurity.

5.Peace in many communities of the Country

The 2010 constitution together with the relevant land laws has resulted to peace
between different communities of Kenya, where effects of colonial and post had
grave effects to communities which inherited there land from there ancestors in that
the system before the promulgation of the constitution didi not acknowledge the
ownership of land on the basis of communities .

6. Restitution and Redistribution Mechanisms

The National Land Policy (2009) and Land Act (2012) provided legal avenues for
resettling squatters and compensating displaced communities . The National Land
Commission’s mandate to investigate historical grievances facilitated redress for
colonial and post-colonial land grabs.

7. Public Participation in Land Governance

The Constitution (Article 10) read in accordance with the Public Participation Bill
mandates public participation in land decisions in that land being considered a unique
commodity to Africans and the major factor of production , ensuring communities
influence projects affecting their land . This inclusive approach contrasts with
colonial-era marginalization of local voices because of the divide and rule tactic
which weakened different communities in fighting back to re-possess their lands .

8. Integration of Customary Law

The legal framework acknowledges customary law through article 63(1) read in
accordance with the Judicature Act Cap 8 of the laws of Kenya of the in land
governance where consistent with constitutional principles Community Land Act,
2016. This bridges formal and traditional systems, reviving marginalized indigenous
practices.
9. Increase of production in the Agricultural sector
Community land issue being addressed through the constitution and applicable
subsidiary laws such as the Land Act 2012 and the Constitution of Kenya has led the
ownership of land reverting back to the right full owners who are different
communities , in which it has resulted to them making good use of their idle land by
planting crops and rearing of livestock making them to earn livelihood and sustaining
them selves and far much importantly boosting the economy to greater lengths,
because of the heavy reliance of the country in the agricultural sector
Conclusion
In a nutshell, the 2010 Constitution and and the relevant land laws together with the
applicable statutes marked a paradigm shift in Kenya’s land governance, addressing
colonial legacies through community rights, gender equity, decentralization, and
restitution. These gains have enhanced tenure security, reduced inequality, and
revitalized traditional institutions, fostering a more equitable and sustainable land
regime.

References
1. May The Real Ubuntu Stand Up; Nyasha Mboti’s article
2. The Constitution of Kenya 2010; article 27, 40, 60, 63(1), 65(1) and 162(2b)
3. Community Land Act 2016
4. Environment and Land Courts Act 2011
5. Land Act 2012
6. Judicature Act cap 8
7. National Land Policy, Sessional Paper No. 3 of 2009; 3.6.2
8. https://judiciary.go.ke/environment-and-land-court/#:~:text=The
%20Environment%20and%20Land%20Court%20Act%20no.,court
%20exercises%20jurisdiction%20throughout%20Kenya.
9. https://kenyalaw.org/kl/fileadmin/pdfdownloads/Registered%20Land
%20Act%20(Cap.300).pdf