THE UNIVERSITY OF NAIROBI

SCHOOL OF HUMANITIES AND SOCIAL SCIENCES BACHELOR OF LAWS (LLB.II) ADMINISTRATIVE LAW 2 MODULE II EVENING COURSEWORK GROUP 2 KARANJA TERESIA WANJIKU ONYANGO JASPER EVANS ABDI ABDULLAHI HASSAN JUMBA FAITH KAVEZA MICHUKI SAMUEL NJOROGE MAURA MALANGA BOSKEY WAIRIMU TAANK SIMON KARANJA NYAMU FRANCISCA MWENDE MUNUVE JANICE MASILA G34/40238/2011 G34/40239/2011 G34/40465/2011 G34/40209/2011 G34/39931/2011 G34/40387/2011 G34/40406/2011 G34/39691/2011 G34/40226/2011 G34/29939/2009

LAND CONTROL BOARDS IN KENYA:

INTRODUCTION Kenya is among the leading exporter of agricultural products in Africa. Land has been a major issue from the pre colonial period up to date. Land rights were secured by the British colonialists claiming it was to promote agriculture. Various land boards have been formed over the years. Some were to protect the British colonialists interest in land while others were to protect resources such as gold. The land control board was formed in 1967. Its main function was to control transactions dealing with agricultural land.

THE HISTORY OF LAND CONTROL IN KENYA

Land was the primary objective of the coming to Kenya of the British colonialists. The British needed raw materials for their industries. They were also after minerals, cheap labour provided by Africans, settlement and adventure. From the onset of formal colonization in 1885, land rights were being secured for the settlers to the detriment of the African natives. Land was and is a finite resource. The colonialist sought to secure rights for the settlers on one hand, while ensuring that the settlers made productive use of the land so acquired. To promote commercial agriculture, the colonial administration required forfeiture by the crown if the lands granted to settlers remained undeveloped without reasonable cause. For their part, settlers began to argue that beyond very cheap land grants, they needed secure titles to benefit from investment in agriculture and to enable them use their land rights as collateral to secure loans for investment1. The colonial administration responded favorably and efforts at registering titles of Europeans on a large scale were

Kenya Land Tenure Committee, Report, 1941 (Nairobi Kenya: Government Printer, 1941), p. 41.

in progress by 1919. The land was meant for agriculture and the government sought to have the land remain intact and to discourage fragmentation. Massive disinheritance of the natives from their land by the colonialists led to landlessness and increased pressure on native reserves, leading to untenable subdivisions of the same. Land boards in Kenya have been in existence in Kenya since the early 1930s. The History of the land control boards in Kenya should be viewed in the context of how the land control mechanism itself developed under the colonial government and the development of the legal regime of property in Kenya. The history of land control has to be read alongside the colonial masters rule, and it is observed that politics, policy and economics were intertwined in the formulation of land control regulation. Land boards first came into the purview of Kenyan law in 1930 through the Native Trust Land Ordinance of 19302. The 1930 Sessional paper provided for the creation of native reserves set aside for natives in perpetuity. It also provided for the establishment of a Native Lands Trust Board to manage native reserves. The board established had power limited to managing tenancy among the natives while fundamental management functions such as planning and development were limited. The board was powerless in the sense the Colonial government could do as it wished with land under the boards management. This was evident when gold reserves were found in Kakamega in the Native Reserve and the colonial government compulsorily acquired the land and relocated the natives without regard to due process. This perhaps precipitated the recommendation by the Morris Carter commission in 1932 to create a more powerful Board of Trustees operating from England and general administration of the reserves be vested in the board, a recommendation that was rejected by the colonial government.

Essays on Land Law, page 16

Restlessness in the native population prompted the colonial government in 1938 to somewhat increase the Native Land Management boards power. The colonial government made legislation to the effect that 1. The governor could only alter boundaries in Native reserves if he thought the land was being under-utilized after getting the consent of the Native Lands Board. 2. The Governor could only grant leasehold interests in Native reserves to nonnatives if the board consented. If such consent was granted, the board would be deemed the lessor. 3. Where land exceeding 10 acres was to be set aside for public purpose, the government must obtain the consent of the board. 4. In Native reserves, customary law practices on land management would be exercised with the Native Lands board to protect the natives interest. A second land control board was also established in the same year, exercising jurisdiction over the Highlands. The Highland Board was established under the Kenya Highlands Order in council to protect the interests of the settlers and to advise the Governor on matters affecting the Highlands. The legislation that perhaps shaped most Kenyas land control mechanism is the Swynnerton plan by R.J.M. Swynnerton in 1955. He was then the deputy director of Agriculture and was charged with formulation of efficient, sustainable and economically viable agricultural policies that perhaps also suited the colonial government in existence. The Swynnerton plan generally provided for; 1. Creation of a landed African gentry that would participate in agriculture extensively while creating a political buffer zone (winds of rebellion and unease were starting) 2. Land preservation and resettlement 3. Tenure security.

The plan generally recommended that Africans be provided with economic sized farming holdings by either consolidation of fragmented holdings or the enclosure of communal lands. It is good to note that recommendations made by the Swynnerton plan were enacted into law and did not do away with the structure laid out in the Native Land Ordinances. They instead enhanced the mechanisms of control over land transactions in the newly adjudicated, consolidated and registered areas. The most notable statutory development was in 1967. The Land Control (Native Lands) Ordinance (Now Cap 302 Laws of Kenya) was enacted into law. It was closely modeled on the Land Ordinance operative within the White Highlands. Its primary objective was to control all dispositions in registered land including transmissions by way of succession except where no subdivision was involved. The ordinance provided that before any disposition, the parties must obtain the consent of the Land Control Board of the district where the land is located. It should be noted that the 1944 and 1959 ordinances were repealed consequently leading to the enactment above in 1967.

REASON FOR FORMATION

The Kenyan economy remains largely agricultural based and due to a complexity of historical, political, economic and social reasons .There was need to tighten the control over the ownership of agricultural land by the government. The main reason for formation of a Land Controls Board is for the control of transactions in agricultural land. Other reasons were: To increase the economic development of the land concerned (Agricultural land) The maintenance and the improvement of standards of good animal? Husbandry within the land control area.

Locking out Foreign Entities Dealing in Agricultural Land

Control Board was formed to ensure that; That the selling and the charging and sub division of land are controlled. That the subdivision of agricultural land could not be done randomly to ensure that large scale agriculture was not disrupted. That no transaction on land could go unmonitored.

The only down side to the formation of the Land Control Board is that it was prone to manipulation by the elite who would want it to bend to their favor. Under Section 6 of the act, certain transactions in agricultural land, termed as 'controlled transactions', are invalid unless they are effected with the consent of the land control board for the land control area in question. This requirement applies to:

The sale, transfer, lease, mortgage, exchange, partition or other disposal of agricultural land;

The division of such land into two or more parcels to be held under separate titles; and

The issue, sale, transfer, mortgage, disposal or other dealing in shares in a private company or cooperative society that owns agricultural land in a land control area.

Agricultural land as per the Land Control Act means land that is not within a municipality or township, (which is now the county government) land in the Nairobi area, or urban centre that is declared by the Minister to be agricultural land is considered so. The Land Control Board shall either give or refuse its consent to the controlled transaction.

Moreover there was need to prohibit persons who are not Kenyan citizens from directly acquiring an interest in agricultural land. FUNCTIONS OF THE LAND CONTROL BOARD: 1. Regulation of the land market. Makes provisions for controlling transactions in agricultural land. The case below shows the basis of the main function of the Land Control Board Leonard Njonjo Kariuki vs. Njoroge Kariuki Alias Benson Njonjo (1979) eKLR The court of Appeal took notice of the injustices which so often flows from the operation of the Land Control Act (Cap 302) and went further to define the purpose of the Land Control Act as, Intended to provide for controlling transactions in agricultural land. Therefore, the Court took a position that according to Section 2 of the Land Control Act, only agricultural land transactions are controlled by the Act and subject to the consent of the Land Control Board. The next case illustrates that the land control board have relevant considerations on their basis of judgement and how decisions are made. Republic vs. Kiambu Land Control Board ex-parte Burnaby Properties Ltd (2006) e KLR The Court held that the decisions of the Land Control Board must be in writing as per section 16 of the Land Control Act and not merely a record of minutes emanating from the Boards meeting. In doing so, the Board must take into account only the relevant considerations; otherwise, the plaintiffs application for order of certiorari against the Land Control Board was upheld.

2. Control of dealings outlined in the Act i.e. Sale, transfer, lease mortgage, exchange, partition or other disposal of or any dealing with any agricultural land that is situated within a control area or the division of such agricultural land. The following cases illustrate transactions on the sale of land.

Wanyoike Kibicho vs. Kamau Nganga (1988) e KLR The plaintiff entered an agreement with the defendant to sell him land at KShs 10,000 in 1985.The plaintiff paid part of the money as was agreed but later when he sought to complete the payment, the defendant refused to take the money saying that his wife, who was now dead, had refused the transaction (earlier on the defendant and the wife together with the plaintiff had gone to the Land Control Board to facilitate the transaction. The question before the court was whether the defendants act was in accordance with the Land Control Act (Cap 302) Laws of Kenya. The court ruled in favor of the plaintiff. Wilfred Kiura Mwangi v Harrison Mwangi Gacheche & Another [2005] eKLR The defendants were a husband and wife. The first defendant that is the husband owned a piece of land and resided there with his wife and their children. The plaintiff entered into a sale agreement with the first defendant and they obtained consent from the Land Control Board and got the title deed. However, the plaintiff could not take possession of the land because the wife and children were living there. The plaintiff prayed for an eviction notice against the second defendant and her children and for manse profits as he had been prevented from using the land for many years. It was held that the first defendant was to refund the money paid for buying the land to the plaintiff with interest and all the disbursements incurred by the plaintiff in registering the property in his name 3. Regulate the transfer of privately owned land. 4. To grant consent in respect of a controlled transaction. An application to extend the period of consent of the Land Control Board must be done in earliest moment as was stated in the case of: Cove Investments Limited vs. Mathias Kimnyole Langat (2006) eKLR The plaintiff sought the court to extend the period of consent from the Land Control Board by six months. The court relied on section 8(1) of the Land Control Act that states, An application for consent in respect of a controlled transaction shall be made in a

prescribed form to the appropriate Land Control Board within six months of the making of agreement for the controlled transaction by any party thereof. The application to extend the period of consent was quashed even though the court had the power to extend the period, the applicant did not make the application in the earliest moment . Mutie v Mutavi & 2 others [2004] eKLR The plaintiff purchased land from the defendant. However, the defendant went on cutting down trees on the land and constructing a house on the said land. The plaintiff was seeking an injunction to restrain the defendants, their agents or servants from entering, trespassing or in any manner interfering with the land. The Land Control Board had not given consent to the sale of the said land and thus the sale was null and void because Section 6 of the Land Control Act states that any sale, transfer or disposition of agricultural land is void unless the Control Board in the area has given its consent. It was held that the sale agreement was void and thus the plaintiff could only recover his money as debt.

Wambua v Wathome and another [1968] EA 40 The defendant applied to strike out the pleadings of the plaintiff which was based on a contract for the sale of agricultural land. The defendants grounds for the application to strike out the pleadings was that the plaintiff had not obtained the consent of the divisional land board which was a prerequisite for the transfer of agricultural land subject to Section 6, Land Control Act. The court agreed with the defendant and held that there was no lawful consent, there was no valid cause of action and the plaint was dismissed with costs.

However in: Re Enkasiti Flower Growers Ltd (2006) e KLR An application by the Enkasiti Flower Growers Ltd under Section 8(1) of the Land Control Act for the extension of the period to make an application for consent in respect of controlled transaction to the Kakuzi/Thika Land Control Board. The applicant had obtained presidential exemption but did not gazette the same. The applicant claimed lack of knowledge of the requirement for gazettment. The Court, in the circumstances of the case, made a decision in favor of the applicant thus ordering an extension of the period for making an application for consent of the board. 5. Giving decisions relating to agricultural land transactions. Republic V Chairman Makueni District [2004] eKLR The application to quash the decision of the Land Disputes tribunal was made contrary to the provisions of Section 143 (1) of the Registered Land Act (repealed), Section 6 of the Land Control Act, Section 13(a) of the Land Disputes Tribunal Act, and section 3 of the Law of Contract Act. The decision of the tribunal was ultra vires regarding the first respondents pieces of land. Its decision was quashed by the court on this basis. The boards created under the Land Control Act should make decisions that are legitimate, within the scope of the powers vested in them Inspection of any land for the purpose of carrying out the functions of the board.

Criteria for granting or refusing consent on an agricultural land transaction:

The Land Control Board should have regard to the effect which the grant or refusal is likely to have on the economic development of the land concerned or in the maintenance or improvement of standards of good husbandry within the land control area.

Transactions are void for all purposes unless the relevant Control Board has given its consent in respect of that transaction. Acts done to push forward void transactions constitute criminal offences. If money or another consideration has been paid in the course of a controlled transaction that becomes void, the amount is recoverable as a debt by the person who paid it.

Circumstances that consent ought to be refused:

Consent of the board ought to be refused if the person to whom the land is to be disposed of: 1. Is unlikely to farm the land well or to develop it adequately. 2. Is unlikely to be able to use the land profitably for the intended purpose owing to its nature. 3. Already has sufficient agricultural land. With regard to the person whom the share is to be disposed of, consent ought to be refused if: 1. The person already has sufficient shares in a private company or a co-operative society owning agricultural land. 2. The person is likely to bring about the transfer of the control of the company or society from one person to another and this transfer lowers the standards of good husbandry on the land. Moreover, consent ought to be refused if: 1. The terms and conditions of the transaction are unfair or disadvantageous to one of the parties to the transaction. 2. The division of the parcels of land would b e likely to reduce the productivity of the land.

Also the board has on its discretion to refuse consent with regards to an agricultural land transaction in which the land or share is to be disposed of by way of sale, transfer, lease exchange or partition to a person who is not: 1. A Kenyan citizen. 2. A private company or co-operative society all of whose members are Kenyan citizens. 3. Group representatives incorporated under the Land (Group Representatives) Act. 4. A state corporation within the meaning of the State Corporation Act. This prohibits persons who are not Kenyan citizens from directly acquiring an interest agricultural land. Please Note: 1. The Act does not apply to land within the Counties, trading centres, townships, markets or other urban centres. 2. In the case of trust land. (In the new Land Act, there is only Public land, Community land and Private land)

REFERENCES 1. ESSAYS ON LAND LAW, FACULTY OF LAW UNIVERSITY OF NAIROBI 2000, SMOKIN C. WANJALA. 2. KENYA LAW REPORTS 3. LAND ACT 4. STATE CORPORATION ACT 5. LAND GROUP REPRESENTATIVES ACT 6. THE CONSTITUTION OF KENYA 7. ARTHUR HAZLEWOOD, THE ECONOMY OF KENYA (OXFORD: OXFORD UNIVERSITY PRESS, 1979) 8. GUY ARNOLD, KENYATTA AND THE POLITICS OF KENYA (LONDON: DENT, 1974), P. 54. 9. ESSAYS ON LAND LAW