This is an attempt to dialectically resolve the controversies attending the Kenya land law with respect to the title of absolute proprietorship under the Registered Lands Act cap 300: Part I of the article being devoted to the nature of absolute proprietor ship title as distinct from the estates known to English land law, and part II to the content of the same with special regard to the issue of customary land law rights under the Act, an issue which has been the subject of differing opinions in both judicial circles and among legal scholars.


Part I: Nature of Absolute Proprietorship


Absolute proprietorship is an interest in land created under the Registered Lands Act (hereinafter RLA) 1963. To understand the i meaning of Absolute proprietorship one must appreciate the fact that it is a term in English legal thought developed with time in England along the conception of the subject matter of ownership being an abstract estate rather than the corporeal land. It only becomes part of Kenyan Land Law terminology when it was adopted in 1963 by the RLA. Notice should also be taken of the jurisprudential imperative that law is to be interpreted and under stood within the social-cultural (read Historic) political and economic environment of the society governed by such law. So that legal sense of any law can be made out of reference and interpretation of such law within that context. It is therefore a truism that a term will have varying meanings depending on the social context within which it is sought to be understood.

The meaning of absolute proprietorship in England may be deciphered from two English law terms as defined in Osborn’s Concise Law Dictionary 7th ed. 1983: “Absolute interest means full and complete owner ship, a vested right of property which is liable to be determined only by failure to appropriate successors in title; “Absolute title” is defined in terms that the registered proprietor of land with absolute title has a state guaranteed title that there is no other person who has a better title and “Absolute ownership” is defined as involving right of free as well as exclusive enjoyment, including the right of using, dis posing of, or destroying the thing owned and of indeterminate duration. But all these meanings are subject to the basic principle of English land law that the land is held of the crown. Indeed, it is observed in the Osborn’s Dictionary under “Absolute ownership” that land in strictness is not subject to absolute ownership because it cannot be destroyed and because of the theory that all land is ultimately held of the crown. In Kenya the position is different only in so far as there is no corresponding theory as in England that the land is held of the crown.  The RLA was based in the Native Lands Registration (special areas) ordinance of 1959 which introduced individual title in the Native Areas or Reserves to overcome what the colonial forces saw an impediment to good developments presented by customary land tenure. The exercise involved adjudication of existing customary law rights in the reserves, followed by consolidation of such fragmented plots of land occasioned by customary land tenure plots of economic size, and finally registration of such titles to land making the tile deeds operative as instruments of transfer or other dispositions.


The greatest controversy respecting the nature of absolute proprietorship is whether it is similar to the English Land Law estate of fee simple absolute in possession. Prof. Okoth Ogendo argues that the theoretical difference that a fee simple is a tenancy with the radical title remaining in the king makes the absolute proprietorship appear to be an allodium, the proprietor having a radical title, but that since the state in absolute proprietorship by way of compulsory land acquisition, the state has, in practise, the radical title so that absolute proprietorship cannot be an allodium which requires absolute rights over land. It is therefore neither a fee simple or an allodium, he goes onto argue but an estate sui generis. On the contrary hypothesis Meggary and Wade in the Law of real property wnd Ed. argues at p.68, describing fee simple as the amplest estate”, that “although strictly speaking it is still held in tenure and therefore falls short of absolute ownership, for nearly all traces of the old feudal burdens have disappeared”.

Technically that something has to be done viz. to remove all the feudal burdens to make fee simple similar to absolute proprietorship is a prima facie case in point that absolute proprietorship is not similar to a fee simple estate.

Again Meggary’s point of comparison is based on the content only, not in the nature, properties or attributes, in our submission, absolute proprietorship in Kenya is not a fee simple but an allodium and the absolute proprietor has the radical title in respect of land which he holds as the absolute proprietor thereof. The following paragraphs of this part are devoted to showing how this proposition arises and in support thereto observes. KAMWENA BENTISI – ENCHILL.

In traditional African politics (read Kenyan) allodial title to land is regarded as being in the community as a whole or in a chief as a trustee for all the people.” Beneath this group title is a progressive individualization of interests specific to particular portions of group-armed land and rested in subgroups and individuals. It is the unapportion areas which like public lands everywhere, remain under the direct supervision of the appropriate group organization. Over the apportioned areas or occupied areas, the group title is basically reversionary or residual interest.” So that interests in land in traditional African politics can be analysed along a system of control and use or what Prof. Allot calls power of control and rights to benefit with the traditional community or its chief having the power of control over the land and the individual member having only a right of user. Prof. Okoth-Ogendo adopting Max Gluck man’s analysis in terms of right of Access and control of the resources (similar to Allots Control/benefit analysis) considered the nature of the power of control which rested in traditional Africa’s political institutions.

“The power of control which also entails the making of choices about the best method of discriminating between competing claims and needs must not be confused with ownership of the physical solutions. The raison detre control in African property systems, the access rights of individuals and collectives over land resources is to ensure that these rights are equitably distributed through time among all members. In no society would the exercise of that power (of control) involve exclusive appropriation of the land resources of distribution upon the whim and will of the controlling authority.

In our judgement this is an accurate observation though inconsistent with his analysis in the nature of Absolute proprietorship. Ogendo however errs in his analysis of subject subsequent development in the Kenyan society where the access rights are adjudicated, consolidated and registered individualising the tenure when he fails to see the allodial aspects of such venture. The controlling authority has fiduciary duties towards the individual to ensure equal and proper distribution but not ownership, and upon registration of rights of individual in the LA the proprietor assume an allodial title.

This traditional Kenya position rationalises, and more the social contact they developed and popularised by John Lock and Jean Jacques Rosseau. By this they the evaluation of society to today’s states can be traced back to the state of nature Here die law of nut which will the peace and preservation of all mankind gave the individual quality in rights and liberty with the standing right to vindicate infringement of the rights and right to prepare his property via Life, liberty and Estate. He however had

no arbitrary power to act according to the heats or boundless extravagancy of his won will but only to retribute so far as calm reason and conscience dictated. Then by social contract the individual quit these natural powers, resigning them into the hands of the community to form a civil society or a political state as distinct from the state of nature. The legislature therefore through supreme in every commonwealth (country) does not have arbitrary power since it has but a joint power conferred to it by every member of the society who himself does not have arbitrary power over another, he has power by nature for preservation of himself and his property and all mankind, and that is all he does have, or can be given up to the commonwealth and by it to the legislature, so that the legislature can have no more than this, its power is limited to the public good of the society.

It becomes manifest then, on social contract theory, that the absolute proprietor has the radical title here in Kenya, with the state exercising its powers of compulsory acquisition only for public good of the society comparable to “ensure that these rights (access rights) are equitably distributed through time among all members of society” in traditional African policies.

That the state has no arbitrary power to take away property and that any such acquisition must be for public good of the society is evidenced by section 6(i) of the lands Acquisition Act Cap 295 which reproduces 5.75 of the constitution providing, in apparent pursuance social contract theory, that the minister must satisfy himself that the land sought to be acquired is required for the purposes of a public body” and that (a) acquisition of land is necessary in the interests of defence, public safety, public order, public morality, public health… to promote public benefit; (b) the necessity therefore is such as to afford reasonable justification for the causing of any hardship that may result to any person interested in the land; and (c) that provision is made for prompt payment of full compensation “Towards A Definition of Absolute Proprietorship”


Dr. Allot “Towards A Definition Of Absolute Proprietorship


(1961 5JAL99 ) defined absolute proprietorship and noted that it does not include claim by crown or any other public body to the ultimate possession of land by virtue only of the law concerning escheat, bona vacantia or compulsory acquisition”, and that an absolute owner means, in the relevant part, “the person (individual or corporate) (a) whose interest is vested and is not defeasible or determinable upon the occurrence of some certain or uncertain future event”. Section 87 RLA provides that any transfer which purports to take effect on the happening of any event or the fulfilment of any condition or at any future time is avoid, that to say, transfer takes effect immediately. Section 88 (2) RLA further embodies Allots definition, providing that”…any condition or limitation made in relation to a transfer which purports to determine the interest of the transfer on the happening or ten the failure of the future even to happen is void”. Section 88 (1) RLA which provides that any limitation purporting to restrain absolutely a transferee or any person claiming under him from disposing of the interest is void, gives expression to the third and fourth aspect of an absolute owner identified by Prof. Allot:: (c) whose interest in the said land is not derived from, not dependent upon any other interest in the said land (save by transfer or transmission from a predecessor in the title of the absolute owner)” and “(d) who has or would have if he were in possession, in respect of the said land, the totality of claims, privilege’s powers and immunities which the law permits any person to enjoy in respect of land”.

On these points fee simple is no doubt different and inferior title: sections 19-22 of Indian Transfer of Property Act 1882 (herein after the ITPA) provides that an interest can be created to take effect forthwith or on the happening of an event and section 31, ITPA that an interest could be created with a condition that it shall cease to exist in case a specified uncertain event shall happen or in case of a specified uncertain event shall not happen, contrary to 55, 87 and 88 (2) RLA, respectively. sections 87 and 88 (2) of the RLA, respectively. Further the fee simple, being a tenancy granted under the Government Lands Act is of course an inferior title to absolute proprietorship.

On these points fee simple is no doubt different and inferior title: sections 19-22 of Indian Transfer of Property Act 1882 (herein after the ITPA) provides that an interest can be created to take effect forthwith or on the happening of an event and section 31, ITPA that an interest could be created with a condition that it shall cease to exist in case a specified uncertain event shall happen or in case of a specified uncertain event shall not happen, contrary to 55, 87 and 88 (2) RLA, respectively. sections 87 and 88 (2) of the RLA, respectively. Further the fee simple, being a tenancy granted under the Government Lands Act is of course an inferior title to absolute proprietorship.

Fee simple is an English Land Law creation, the base of which is, as Meggary “A manual of the law of Real Property” at P.9 3rd Ed. notes, that all land in England is owned by the crown, the individual holding land either directly or indirectly from the crown – “Nulle terre sans seigneur” – no land without a lord: so that there is no allodia land in England. Further Meggary observes that the position can be traced from the Norman conquest 1066 A.D. William I (William the Conqueror) regarded the whole England as his by con quest, and to reward his followers and those of English who submitted to him, he granted and confirmed certain land to be held of him as the overlord, not granted by way of an out and-out transfer but to be held from the crown upon certain conditions. Such conditions being in form of services to the King the Knight service and the Grand Sergeant for instance and each of these services being known as a tenure, showing how the land was held. The term estates were used to define, the period for which such land was held and after which it reverted to the crown.

Against the background of the social contract theory, the Norman conquest represents a revolution, the imposition by William I of his will over the members of the Civil Society, taking more power than that resigned to the commonwealth by the individual members, such power taking an arbitrary form, making it possible for the king to take away each individual member’s property in land. Such could not happen before the conquest for then the civil society only had those powers conferred to it by its members. Such a revolution has not taken place in Kenya such that the state has only those powers conferred by the members of the civil society. It is then fictitious and undialectic to talk for “Eminent domain” in Kenya: the radical title in land is not in the state but in the individual absolute owner. The state in compulsory acquisition acts as a trustee’ to the members of the society being empowered to acquire land only where it is in the interests of public good of the society (see sections 75 constitution and section 6 (1) Land acquisition Act afore mentioned).

It could be argued that with colonisation and accompanying imposition of English Land Law, the crown acquired radical title to land. For reasons we here below show, that is not so but even if it were so, subsequent development must be construed as having revested the radical title in the individual members of the Society. The 1938 Native Lands Ordinance vested the title to Native reserves in Trust Board thus taking such land from the purview of the crown lands ordinance 1915 and a fortiori from the crown. The radical title with respect to such Native reserves or trust lands in the Trust Board was later in 1963 transferred to county councils, by section 115 of the constitution, which held them in trust for the individual with section 116 constitution further providing for registration of individual titles in the Trust lands, so that the individual got the radical title. That notwithstanding it would be unscientific and dialectical to say that the colonisation order 1920 and the crown lands ordinance 1915, as was erroneously, in our submission, held in Wainanina V Murito (1923) 9 (2) KLR 102, had the effect making natives tenants at will of the crown, and therefore amounting to a revolution, similar to that of the Norman Conquest de positing the civil society established by the social contract by the Africans.

African Reserves were still governed by their customary land law, a fact that found expression in the 1938 Native Land Trust ordinance section 68 of which provided that: “in respect of occupation, use, control, inheritance, succession and disposal of any native land, every tribe, group, family and individual shall have all rights which they may enjoy by virtue of existing native customary law or any subsequent modification thereof”.

The position continued uninterrupted up to 1959 when the Native Land Registration ordinance provided for the adjudication, consolidation and registration of the claims or rights of the Africans respecting the land in reserves. Customary right to land that is the access or benefit rights were assessed and granted recognition in the new system. In adjudication the system of ascertaining who was entitled to what piece of land was the customary law which governed the Africans and this customary law was based on rules developed in the course of time within the customary civil society headed by their chiefs and elders in the basis of social contract theory. In acephalous societies the civil society would be headed by a common grandfather of particular lineage or by the clan.

In summary then, the state’s power of acquisition and escheat exist only on the basis of a fiduciary relationship or trust in popular speech for practical purposes, which is created by social contract. The exercise of these powers must be in pursuance of the social contract theory viz. only for the public good of the society but not arbitrary taking away of property. The radical title in absolute proprietorship therefore, is in the individual proprietor and on this basis the interest becomes an ALLODIUM. It is not an estate sui generis for the doctrines of estate and tenure are inappropriate in reference to the Absolute proprietorship under RLA. The two are basic doctrines in English law of Real property and are based on the principle that all land in England in owned by the crown: (a) the doctrine of tenures proclaiming that all land is held of the crown either directly or indirectly, on one or the other of the various tenures and (b) the doctrine of Estates that a subject cannot own land, but can merely own an estate in it, authorising him to hold it for a period of time.

The absolute proprietorship having bee8. created by adjudication of rights already existing under customary law arising out of social contract and not express grants from the crown for a period of time as in the case of a fee simple, cannot be termed an Estate, neither could the term “tenure” be used to describe the holding. We therefore, propose to use the term “title” to land in reference to absolute proprietorship in their stead.


Footnotes: Part I


  1. Nature and Content of Property Rights – Teaching Manuals in Land Law.


  1. “Do African Land tenure system require new Terminology” (1965) 9(2) J.A.L. 114, 124.


  1. Ibid. at 125


  1. “Towards A Definition of Absolute Proprietorship” 1961) 5 JAL 99.


  1. Paper on African Land Law presented in first All Africa Conference on individual under African Law, in Swaziland 1981.


Part II Content of Absolute Proprietorship

The second part of this work raises the question of the relevance of customary law to the present system of land law in Kenya. Does customary law persist as one of the contents of the Registered Law Act in Kenya? There are two ways in which customary law could apply to land. Firstly, as concerns the pre-registration period, that is rights to land arising during adjudication and prior to registration. Secondly, as concerns the post registration period, that is rights arising after the registration period, of such land. Since who we are concerned with the persistence of customary law under the R.L.A., we restrict ourselves to the first genre of customary rights.

A perusal through the case law that concerns customary law rights in the land reveals two classes of customary law. Firstly, there are beneficiary rights. These are rights that belong to all the members of a family unit, or a clan or tribe where the land is held by one person as owner. Secondly, there are rights of occupancy and user. Under customary law. These are the various classes of rights to land and one could possess rights of occupy and user and yet not be regarded as owner. Can these rights be enforced after land has been registered under the R.L.A. in the name of one person as absolve proprietors.

5.27 of the R.L.A. provides that the registration of a person as proprietor shall vest in such a person the absolute ownership of that land. 5.28 of the same Act further provides that the rights of a proprietor shall nor ben✓ liable to be defeated except as provided in the f Act. The ways in which they can be defeated 1 under the Act are under 5.30 (overriding interests), by a lease, charge, or other encumbrances noted in the register, or by a beneficiary interest under a trust. Despite these > provisions, it was formerly taken for granted 1 >that S. 3(2) of the Judicature Act ¹ applied to suits concerning land in Kenya.

“The High court, the court of Appeal and all subordinate courts shall be guided by African customary law in all civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law…”


Attempts to invoke the above subsection has brought about one of the most interesting and presently unsolved controversies in Kenyan land law. It has resulted in the division of the judiciary into two schools-of thought for and against customary law persisting under the R.L.A. In BELINDAMURAI V. AMOS WAINAINA2, Porter J held that:

“No rights in land under customary law can survive or arise after the registration of such land under Registered Land Act. Such rights as existed before registration are extinguished and none can arise thereafter”.

On the other hand, Miller J., as he then was, said:

“I refuse to be moved by the suggestion to this court that customary law and practice affecting land have ceased to exist in Kenya”.

In the case of OBIERO V. OPIYO, the defendants raised the defence of their customary rights to their father’s land and the fact that these rights were being denied through the Plaintiff’s fraudulent registration as absolute proprietor. It was held that even though the defendants had a right to cultivate under customary law, such rights would have been extinguished when the plaintiff became the registered proprietor. BENNET J. held that had the legislative intended that customary law was to be of any relevance, nothing would have been easier than to say so. This holding was followed by NEHLER J. in ESIROYO V. ESIROYO

On the other hand, customary law rights have been upheld in the face of registration under the R.L.A. In MUGUTHU V. MUGUTHU, Muli J. held that though the defendant had been registered as absolute proprietor, he was still a trustee as envisaged by customary law as eldest son in the family. In SAMUEL THATA MISHECK V. PRI CILLA WAMBUT, MULI added:

“Registration of title is a creation of the law and one must look into the circumstances surrounding each case as well as customary law and practise in force surrounding the registration of titles to determine whether a trust was envisaged.”

It is our opinion that from a philosophical and statutory point of view, customary land and practise affecting land still applies in Kenya despite the registration of such that affecting land under the R.L.A. From a statutory point of view, we address ourselves to interpretation of the R.L.A. The preamble of the R.L.A. says it is intended to make further and better provision for the registration of title to land, and for the registration of title to land so registered for purposes connected therewith”. S 2(a) says the Act applies to every area to which, before the commencement of the Act, the Land Registration (special areas) Act applied S. 2(b) applies it to areas in which the Land Adjudication Act applies or applies and S.2(d) applies it to most land under S.117 and S.118 of the 1 constitution. The common factors with all land mentioned under S.2 is that all were formerly or are governed by customary law. The preamble indicates that the Act is not. meant to abolish customary law but only “to make further and better provision for the registration of title” in this lands.


Another mode of ascertaining the intention of the R.L.A. is through the Rule in HEYDON’S case, or the mischief rule. We go beyond the Statutory provisions into the history of the statute. In A-G OF UGANDA Y KABAKA OF BUGANDA’ it was held that it was in order to look into the history of a statute to enlighten on the circumstances under which it was promulgated. In the two English decisions of DAVIS V. JOHNSONS and BLACK CLAWSON

  1. PAPIER WERKE, the House of lords has held that the report of a commission recommending new law can now be used by courts to interpret the legislation enacted subsequently. We take into consideration four reports: Swynnerton Report, 1954, Report on a working party on African Land Tenure, 1957-58, East African Royal Commission. 1953, and the Report on the mission on land consolidation and Registration, 1965-66. We then interpret S.27 and S.28 of the R.L.A. as follows:


  1. What was the state of the law before the Act was promulgated? Kenya’s historical development was based on customary law and practise prior to colonization.
  2. What was the mischief aimed at? The deliberations in all the above reports was on how to develop African agriculture and what to do about the main set-back; viz, the lack of security in land tenure due to lack of individual ownership in customary law.
  3. What was the remedy to cure the mischief? The remedy suggested was that African land tenure should be individualised and registration be done of the individual owners. An Act of Parliament was to provide for this.
  4. What was the true reason of the remedy.

It is our contention that it was purely economic expediency.

It is our submission that the R.L.A. was aimed at streamlining the working of the system of customary land rights to rhyme with the new economic order that was introduced. The Act was not aimed at the right but at the system that governed those rights.

Gibson Kamau Kuria has argued that the R.A. cannot abolish customary law land right without being inconsistent with the constitution and thus void under S.3 of the Constitution, S.117 & S.118 of the constitution of Kenya provides for the acquisition of trust lands by the governor and compensation to the owners. In case of an unadjudicated land, the owners are to be ascertained by adjudication of customary law rights on the particular land. This amounts to property rights under the constitution. They are therefore safeguarded under S.75 of the constitution from unlawful interference with private property. Mere registration under the R.L.A. cannot abolish such rights unless compulsory acquisition is intended and the procedure of S.75 of the constitution and S.6 of the Land Acquisition Act are compiled with.

It is therefore our submission that the customary law land rights mentioned earlier, viz beneficiary interests and occupancy and users’ rights do survive the registration of land under the R.L.A. As concerns rights of occupancy and users, S.30(G) of the R.L.A. provides that the rights of a person in possession or actual occupation of land to which he is entitled in right only of such possession or occupation has an overriding interest in such land. The rights of an absolute proprietor are subject to such overriding interests. It is our contention that such rights under S.30G include rights under customary law and no provision under the R.L.A. would contradict such a holding.

S.28 of the R.L.A. has a proviso that nothing under that section (S.28) shall be taken to relieve a proprietor from any duty or obligation to which he is subject as trustee. These are three ways in which a trust could arise as regards customary law rights. First, where a person is registered as proprietor subject to overriding interest, he holds those interests (that are not registered) in the land as trustee for the beneficiary of those rights. Secondly, where one is registered as proprietor of land to which a tribe, clan or family is entitled to user, and thirdly where land is transferred to a person with an underlying intention that he hold it as owner on behalf of others.

This raises some issues to consider. What is the propriety of treating a practise of African customary law as one would treat Equity? Can a trust be created under African customary law or do we have to look or an English trust? What if the proprietor was not registered under S.126 as trustee. S.126 provides for the registration of title to a person in a fiduciary capacity. The words “as trustee” shall be added in the register. But this is not mandatory. The section says the proprietor “may be described by that capacity” (Emphasis ours). The provision is only permissive and lack of compliance would not derogate responsibility of a proprietor under a trust. Second to this is that subsection (2) says an instrument creating any trust, or a certified copy thereof, “may be deposited”, (Emphasis ours), with the Registrar for “safe custody” (Emphasis ours). This again is only permissive procedure, and the instrument “shall not form part of the register or be deemed to be registered”.

Must the trust be a trust under English law? African customary Law has its own conception of a trust. In MUGUTHU V MUGUTHU”, Madan J., as he then was, held that Kikuyu customary law has its own notion of a trust inherent in it.

The technical rules on trusts are peculiar to English Law. But English law does not have a monopoly on Equity.

Equity exists in two senses, Equity in general and equity in particular. Equity in particular are the doctrines of equity which are peculiar to the English Legal system. Equity in general is the humane and liberal interpretation of the law without actual antagonism to the law. The need for this interpretation arises from the injustices of the generality of the law in particular instances. In this sense, Equity is universal to all per sons.

In NYALI LTD. V. A-G.” Denning L.J. as he then was, considered the proviso in S.3 of the Judicature Act, then contained in Article 15 of the Order-in-Council of 1902 as amended by the Order of 1911. This proviso states that common law and doctrines of equity shall apply to Kenya “subject to such gratifications as the local circumstances render necessary”.


“This wise provision should, I think, be liberally construed. It is a recognition that the common law cannot be applied in a foreign land without a considerable gratification. Just as an English Oak, so with the English com mon law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England… it has many principles of manifest justice and good sense which can be applied with advantage to peoples of every race and colour all the world over: but it also has many refinements, subtle ties and technicalities which are not suited to other folk. These off-shoots must be cut away”.

The Kenyan judiciary should therefore be ready to apply Equity in the understanding of it as a synonym of natural justice and fairness. They must be ready to recognise the perception of a trust in our customary law.

Before addressing ourselves to the philosophical concerns of this essay, we desire to buttress the above argument with one factual consideration. This is the effect of the 1957 AFRICAN COURTS (SUSPENSION OF LAND SUITS) ORDINANCE. It was promulgated to enable the process of adjudication and consolidation by halting all suits on land during the process of adjudication and consolidation. The problem caused by the ordinance is well seen in the case of DISTRICT COMMISSIONER OF KIAMBU V. R. Ex parte ETHAN NJAUS The applicant sought a writ in the nature of mandamus to correct the register due for a wrong entry. The promulgation of the above ordinance had prevented him from having the issue solved at the appropriate time. For reasons that are not material to this discussion, the Court denied him the writ of mandamus. There seems to be an assumption made by the legislators in the promulgation of the Registered Land Act that all persons were aware of the effect of final adjudication and that all disputes of the same were solved in the process. Considering the above ordinance and the level of illiteracy and legal unawareness then, the assumption is unreal. The squatter problem at the coast shows just how much.

Our next consideration is the significance of customary law to the philosophy of law. We would firstly like to consider the Historical school-of-law. Friedrich Karl Von Savigny (1779-1861) had the following to say of Customary Law, which has referred to as the VOLKS RECHT (We would like to alert the reader of the subtle distinction made by Savigny of Customary Law by mode of origin. There is the law that lives in the general consciousness of the people. It is the spirit of the people living and working in common. This is what savigny referred to as positive law or VOLKSRECHT stricto sensu. There is secondly law that arises due to precedence; the decision of one time is followed in later times and becomes law. We will, however, treat the distinction as on no material significance).


“…Originally all positive law is people’s law and that side by side with this spontaneous generation, comes legislation enlarging and propping it up. Then by the progressive development of the people, legal science of law, two organs are furnished to the people’s law, each which simultaneously leads its independent life. Thus it may happen that people’s law may be almost hidden by legislation and the legal science in which it lives on, and that the true origin of existing positive, may be easily forgotten and misunderstood”,”


Gibson Kamau Kuria in “THE ROLE OF CUSTOMARY LAND TENURE IN RURAL IN KENYA 1977” is of the opinion that the Registered Land Act arose as savigny argues above. According to Kamau Kuria, if that was not case, then what was the purpose of the adjudication of Customary rights to land. The essence of the Act is the Customary law in respect to land. This might prompt the reader to wonder whether the provisions on mortgages and leases etc are part of our customary law. That is the next inquiry.


We would like to explain the above from the view of the modern political economist. In a capitalist economy, the “market” is the machinery of the economy. It distributes scarce resources, sets prices, determines the supply and satisfies demand etc. But since this functioning is on an ideal plane, in practise interference is called for in the functioning of the market. In the post-contractual society, (after the social contract is made), interference is done by the government. The mode of control of the capitalist market is the “social welfare function”, balancing the machinery for the welfare of the society. The law of mortgages and leases is all part of the social welfare function, to assist the capitalist market in governance of the same.

The authors, therefore, regard law in two district perspectives. There is the directive existence of law, as an imposition on society, purely positivistic, and what John Austin called the “will” of the sovereign. There is secondly the derivative existence of law, what Savigny called the VOLKS RECHT. The interpretation of law should address itself to this distinction. One cannot fail to appreciate the liberalism of mind a judge should exercise when, for example, interpreting provisions of the Law of Succession Act, as opposed to when he is addressing his mind to the Penal Code. Extraneous considerations may always be made in the former, in the form of consideration of social relations, and the ramifications of such interpretation.

In respect to the above, we would like to approve the ideas of Picho Ali in “Ideological commitment and judiciary”. He says,

“The principle of ideological parity is an attempt…to show the need to maintain and develop the harmonious inter-relations between law and political order”.

Dr. Nyerere in the book “Freedom and Unity” says,

“The fact that judges interpret law makes it vital that they be part of the society that is governed by that law. Their Interpretations should be made in the light of the assumptions of that society in which they live. Otherwise, their Interpretations may appear ridiculous to that society and the whole concept of law may be held in contempt.”


The aspirations of the Kenyan Society as in session paper No. 10 of 1965 is the respect to African life and society. The authors believe the judiciary should give strength to Kenya’s ideology.


We like to make one last consideration, whether land should be primarily a basis of credit or a basis for agrarian survival. This question is of importance particularly in an agrarian based economy. It is quite obvious that priority of economic development in Kenya lies in the agricultural sector. It is on this sector that the mass of the peasantry derives its livelihood. The benefits of agriculture should therefore be spread out among the peasant unlike the middle class cannot turn to another sector. Customary land tenure provided security to all by availing the usage of law on family basis. Methods of land ownership in Kenya should therefore be geared towards the same. The lack of significant industrial working class in Kenya turns the question of landlessness into one of livelihood.

We conclude this work with the following words of Prof. Allen:

“Nobody claims that the law always achieves ideal moral justice, but whatever the merit able technicalities of legal science, they exist for one aim only, and that is the aim of the judge’s office, to do justice between litigants, not to make interesting contributions to legal theory.”17

Footnotes Part II

  1. Cap 8 Laws of Kenya


  1. Civ App. No.45 of 1977


  1. (1972) E.A. 227 4. (1973) E.A. 388


  1. Civ. Case No. 377 of 1968.


  1. Civ. Case No. 1400 of 1973.


  1. (1965)


  1. (1978) 1 All E. R. 1132


  1. (1975) A.C. 591


  1. “The Role of customary law tenure in rural development in Kenya, 1977.”


  1. Cap 295 laws of Kenya


  1. Supra (5)


  1. (1956) 1 QB 1, (1957) 1 All E.R 646 14. S. R. & O, 1902 No. 661 and S. R. & O,


1911 No. 243


  1. (1960) E. A. 109


  1. Transition 36 (July 5, 1968) Pp. 47-49 17. LAW IN THE MAKING