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Society

Land tenure system that left little room for conflict

Land owners demonstrate in Eldoret town
Land owners demonstrate in Eldoret town to demand compensation before making way for a road project. Traditional law in many areas of Kenya generally recognises rights of control of land and that of use and access. FILE PHOTO | NMG 

“When the European surveyors arrived in Kiambu District, they found an apparently unoccupied land. Unwilling to accept that the “primitive” people of Kenya were capable of conceiving the notion of land ownership, the British thought it within their rights to take the land and do with it whatever they wanted. Of course, they were wrong. The Kikuyu had a complicated and effective concept of land ownership……”, writes Jens Finke in Traditional Music and Culture of Kenya.

While commenting on my article on The Morris Carter Land Commission of 1934 last week, one of my younger readers asked; “What was the approach to land ownership in Kikuyuland before the white man came?” I thought I should indulge him by broaching the subject this week.

In most parts of Africa, tradition and culture were passed on orally from one generation to another. Indeed, it was the duty of elders to remember and hand down information to younger generations over a period of time in a structured manner. And so, it was with matters concerning land and its ownership. There were no written records.

Louis Leakey is best known for his work on the origins of man but I agree with Joe Gichuki in his review of Leakey’s book, The Southern Kikuyu Before 1903 (The East African, September 22-28 2008) that this anthropological record of the precolonial Agikuyu was his greatest achievement.

It was a remarkable feat for a white man, the son of Church of England missionaries, who as a child grew up among Kikuyu children and was initiated into the Mukanda age group, to capture the traditions, culture and knowledge of the Kikuyu in writing and immense detail.

By 1928, Louis had already got himself involved in Kikuyu tribal affairs by opposing female genital mutilation. One evening he got into a shouting match with Jomo Kenyatta, who was lecturing on the subject in London. In 1936, Louis secured a grant and a salary for two years from the Rhodes Trust to write a study of the Kikuyu.

Returning to Kenya in 1937, Louis settled in Kiambaa and persuaded Senior Chief Koinange, who designated a committee of chiefs, to help him describe Kikuyu history, traditions and culture.

According to Leakey, land south of the Chania River was purchased by the Kikuyu from the Dorobo, a hunter-gatherer group. The usual medium of exchange was goats or their equivalents.

If the seller was not a Kikuyu, 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.

Thus, the Dorobo seller was adopted as a Kikuyu and the Kikuyu became a Dorobo, each becoming bound by the other’s laws. The process was directed by elders knowledgeable in their respective laws. If the proper ceremonies were not followed or conducted by the appropriate elders no land transaction would be recognised or protected under Kikuyu law. It was also through these procedures that the Dorobo and their families were absorbed into Kikuyu society.

Land was bought from the Dorobo by individual Kikuyu or by several in partnership and included all the assets such as trees on them unless (as was the case with certain salt-licks considered essential for the community’s livestock) specifically exempted in the sale agreement.

The land bought was known as “githaka” (estate) and the owner became its “mwathi”. A landowner could sell or give all or part of his “githaka” to individuals or partnerships. He could stipulate (before the appropriate elders) that upon his death, part or all of his land should pass into the sole ownership of another person; usually the eldest son, or other people or specific parts of it to different sons. Each person became the “mwathi” of what had been bequeathed.

Such clear-cut wills and bequest were not common, however, and more usually a landowner died intestate where the estate became the property of his descendants or “mbari” (sub-clan) and was controlled by the first-born sons of the deceased’s widows. They were bound to provide cultivation for their wives, widowed mothers and younger uterine brothers.

Kikuyu land law recognised both individual land ownership and communally owned land in the restricted sense of “mbaris” only.

Virgin land

In his book “Facing Mount Kenya”, Jomo Kenyatta stressed that all land was owned by individuals or “mbaris” and none was held communally in the sense that everyone had equal access to it.

Leakey stressed that ownership was not restricted to land in actual use and occupation and did not lapse by dint of it lying fallow. Some “githakas” contained large tracts of virgin land some of which, like Karura Forest and City Park, were considered sacred by the Kikuyu.

Those who felt crowded in their natal “mbaris” had the option to become a tenant in residence (“muthami”, plural “athami”) of a rich man or of a “mbari” that had vacant land, or to cultivate on the property of someone else as a tenant at will (“muhoi”, plural “ahoi”).

New “githaka” owners needed manpower for development and defence therefore “athami” and “ahoi” were welcome. “Athami” enjoyed security of tenure and some even acquired rights of inheritance while the “ahoi” were less secure but could work their way up the social ladder.

Although Louis Leakey completed his book in 1938, it lacked a publisher until 1977 because it undermined one of the main pillars on which colonial policy was premised. I believe that had the contents of the book been brought into the public domain sooner, it would have saved this country much of the suffering our people have experienced, including the Mau Mau insurgency and the post-election violence of 2008.

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