In order to understand Kenya’s land problems, it is very important to understand Kenya’s land history. One has to appreciate the different cultures and their view of land as far back as the time such communities can claim ownership on what is generally considered ancestral land, wade through the colonial era and look keenly into the post-colonial Kenya. A common phrase that comes into play when land is mentioned in Kenya is “historical injustices.” Here, I try to trace back where those injustices may have occurred, not by pointing fingers but by finding understanding. I have had discussions with many friends on the issue of land and found out that there is a lot of ignorance not only on what many communities have come to disagree with but also in the events and parties that led to the current problems. Today, I will start with the Kikuyu, how they got their land, their land laws and challenges they face with the land problems today.
To the Kikuyu, land has always been a very important part of their lives as a result, for one to understand them, one needs to understand traditional Kikuyu land laws, customs and its relevance to modern times. The Kikuyu can be traced back 300 years ago to the eastern slopes of the Aberdares in Muranga from where they spread north and south along the forested lower Aberdare slopes with some crossing the Southern Chania river into what are now Thika and Kiambu Districts.
How did the Kikuyu get land? The initial Kikuyu land holdings were dispossessed from the forest-dwelling Agumba who they chased away by force and are today extinct. However the Southern Chania land was purchased from Dorobo or Ogiek the currency was goats or its equivalents. However, before any negotiation could be concluded, the ground had to be set so that the legitimacy of the transaction would be recognised by both the seller’s and buyer’s societies. So, both had to first become members of one another’s societies. This was done by the Dorobo seller being adopted as a Kikuyu and the Kikuyu became a Dorobo, so that both became bound by one another’s laws. These steps were directed by the law-interpreting elders on both sides. Once the Dorobo seller was a Kikuyu, he was protected by Kikuyu law and could appeal to the arbiters of Kikuyu law for protection in the event of any “breach of contract” or agreement. The land bought was known as the new owner’s githaka (estate). Each person became the mwathi of what he had been bequeathed or purchased. In this manner, individual private land tenure could be passed down through successive generations. A point worth noting and of great importance is to understand that if the proper ceremonies supervised by the appropriate elders were not performed, then no land transaction was recognised or protected by Kikuyu law. In the event of the death of mwathi his estate became the property of his descendants or mbari (sub-clan) and was controlled by the first-born sons of the deceased’s widows. Kikuyu land law therefore recognised both private individual land ownership and communally land ownership. Looking back, it can be agreed that what was Central Province has no existing land problems with any other community cos the foundation of those agreements were strong and mutually agreed upon but one can also say that the fact that it is Kikuyu land, there are really no aggressor since most land issues arise from Kikuyus being the aggressors.
It is extremely important to note that historically Kikuyu land ownership was not restricted to land in actual use and did not lapse when lying fallow. This fact is very important when looking into Kikuyu land ownership in the diaspora(Kikuyu land outside central province). Kikuyu law also provided for the formation of what would now be called forest reserves. A man who had bought a large area of forest sometimes left a deathbed curse prohibiting any of his descendants from ever bringing tenants onto the estate thus leaving the land undisturbed an examples of such is Karura Forest Reserve lying between Nairobi and Kiambu which was made a reserve by four landowners jointly, Tharuga, Gacii, Wang’endo and Hinga.
With increased population, there was increased pressure and those who felt crowded on their land became residential tenants(muthami) of a rich man, cultivated on someone else’s property as a tenant-at-will(muhoi), or became a tenant in a dwelling that had vacant land. Again of utmost importance was the fact that as per Kikuyu laws the tenant’s rights expired upon his death and if the family wished to continue the tenancy they had to renegotiate with the landlord. Here again comes another important fact to note in that Kikuyu land laws were well-developed to include long-term land ownership and the respect for such ownership. It would be fair to say that while Kikuyu laws were not codified in writing, Kikuyu land tenure had many similarities to British land law.
With the coming of the British it should be noted that the early colonial administrators believed that Africans did not have evolved long-term land ownership because most African farmers practised slash-and-burn agriculture and had to move to new land every few years which was fundamentally wrong where the Kikuyu were concerned. It is on that false assumption, that in 1904 the government allocated some Kikuyu land to the white settlers it had invited to come to Kenya and develop large-scale agriculture. The new settlers felt that as the government had invited them to come to Kenya, it had to help provide the labour without which they could not farm on a large-scale. However, the government had not foreseen the need for labour leading to some settlers approaching the Kikuyu directly. They agreed mutually that in return for providing specified quotas of work, they would allow the Kikuyu and their families to live on their farms, grow crops and keep livestock(muhoi). Those making this offer were unaware that, to the Kikuyu, it was tantamount to becoming athami with access to the wide acres that had previously only been grazed by Maasai, under the protection of the white athi. Many Kikuyu jumped at the opportunity and became athami on white-owned farms. By 1933 there were over 110,000 Kikuyu living outside the Kikuyu districts on white farms and by 1945 the number had shot to 121,181 Kikuyu squatters in the White Highlands.
Something worth noting here is that according to Kikuyu land laws, these squatters had no rights to the land to which they were residing and farming on neither did they have legal rights as per the colonial laws. I will conclude here so that I can address the other communities involved in the land disputes in Kenya. Next I will look into the Maasai in Part 2. Keep up with me, things will get very interesting when we tie all these facts together and come to an ideological and layman’s legal conclusion.
RealTalkWithEric 