Conflicting Claims to Custom: Land and Law in Central Province, Kenya, 1912–52

Abstract

In antithesis to legislation on land tenure introduced through the Land Registration Act, 1959, premised on the notion in English common law that the right to allocate land was equivalent to exclusive ownership, “ownership” under customary tenure in Kenya was “essentially heterogeneous and divisible”. People differentiated by age, gender and wealth had bundles of rights defined, in Okoth-Ogendo's words, by “the status differentia which a particular category of membership in a production unit carries”. The complexity and elasticity of customary land law, Okoth-Ogendo demonstrates, derived from its separation of access rights from allocative rights, and the subjection of the latter “to the economic tasks required of the former”. This distinction and the ensuing visibility in legal discourse of both use rights and rights of allocation was critical, as Okoth-Ogendo indicates, in ensuring “the proprietary position” of women, the primary agriculturalists, in societies such as that of the Kikuyu, which are frequently classified as patrilineal.