GROUP 5B-REGULAR CLASS

1.MAGAJU LORINE KENDI-GPR3/3886/2023

2.NGUNJIRI TIMEUS NDIRANGU - GPR3/3882/2023

3.LOSIA FAITH SAISI-GPR3/3888/2023

4.KEITH KIHARA MWANGI - GPR3/3890/2023

5.WAMBUI PRUDENCE WANJIRU - GPR3/3887/2023

6.ORENGE DANIEL MAGATI-GPR3/3892/2023

QUESTION 5

Introduction

Many Kenyans resonate with the term Historical injustice as it is a predicament they have
grappled with since the entrenchment of colonial rule in Kenya. Immense and grave land
injustices have been prevailed upon Kenyans since the colonial era and the ray of hope that
independence would cater to this injustices was greatly shattered as the injustices continued to be
perpetuated by our very own African elite. The much anticipated restructuring of the land
policies and significant shift in land legacy and management did not materialize 1 and might have
even been exacerbated by the regime in power immediately after attainment of independence.
The national Land policy defines Historical land injustices as grievances which stretch back to
colonial land administration practices and laws that resulted in mass disinheritance of
communities of their land, and which grievances have not been sufficiently resolved to date. 2
The National land Policy 2009 at section 21 traces the origin of the land question which involves
historical land injustices to the colonial times when the objective was to entrench a dominant
settler economy while subjugating the African economy through administrative and legal
mechanisms.3

1
Prof. Patricia Mbote ‘The Land Question in Kenya ;Legal and Ethical Dimensions’ [2009]
2
Sessional Paper no.3 of 2009, National Land Policy, August 2009. (Section 178)
3
Sessional paper No. 3 of 2009, National Land Policy, August 2009. (section 21)

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From the aforementioned definition, it suffices to say that indeed Thiga and his family are
victims of a Historical Land Injustice as their ancestral land was grabbed from them and
given to the British during the colonial era. The Crown Land Ordinance of 1901 converted
African land to crown land, which considering its location along Waiyaki way, the land
belonging to Thiga’s family and ancestry must have been converted to crown land, and his great
grandfather’s grandfather was ‘a tenant of the crown’. The Crown Land Ordinance of 1915
must have then led to the complete confiscation of the land and the land was subsequently given
to the British people.

Part (a)

There are two lawfully mandated institutions that Nyenje could lodge his claim, pursuant to the
Constitution of Kenya 2010. These are;

a) The National Land commission4

b) The Environment and Land Court 5

The National Land Commission.

The constitution of Kenya under Article 67, establishes a National Land Commission,
and under Article 67(2)(e), vests upon the commission, the power to initiate investigations,
on its own initiative or on a complain, into present or historical land injustices and
recommend appropriate redress. This position is also fortified by provisions of the National
Land Commission Act under Section 15(1).6

The commission is mandated to take up the role of solving historical land injustices, particularly
due to the fact that, such a claim is not particularly solvable under normal court processes. This
follows the provisions of the Limitations of Actions Act, under section 7, giving a time period
of 12 years to bring up a claim in land ownership. Seeing as historical land injustices took place
during the colonial period, such as Thiga’s claim, it would hence render such victims helpless
and consequently deprived of justice. Every citizen of Kenya is entitled to access to justice and
to be able to seek redress where injustice has been occasioned, and the Commission thus makes
this a reality for those still suffering as a result of the said historical land injustice.
4
Constitution of Kenya, 2010, Article 67(1) (e), Kenya.
5
Constitution of Kenya, 2010, Article 162 (2) (b).
6
National Land Commission Act, 2012, No. 5 of 2012, Section 15

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 The Environment and Land court.

While there have been disputes regarding the jurisdiction of the ELC to hear and determine land
claims occasioned by historical land injustices, the court has repeatedly asserted its jurisdiction
on the same and gone on ahead to give reasons why.

The Constitution, under Article 162(2)(b), establishes a court, of equal status with the High
Court of Kenya, to hear and determine issues on use and occupation and title to land. This is the
Environment and Land Court.

In the case of Henry Wambega and 733 others v Attorney General and 9 other s7, the ELC
asserted its jurisdiction to determine matters historical land injustices. It was held that even
though this particular mandate was vested on the NLC, there is no specific provision either by
the constitution or statute, that bars the ELC from determining this issue. Therefore, where
claimants prefer judicial intervention as opposed to administrative processes, it should be
available to them.

On the issue of time limitation, this was dealt with by virtue of the fact that, a claimant can bring
up this claim, as a constitutional petition, which is not time barred under the Limitation of
Actions Act. A similar limitation clause is also set in the NLC Act, under section 15(3)(e) where
such claims can only be lodged within 5 years of the commencement of the Act, therefore tying
the hands of the NLC to handle such cases past those 5 years.

The Court of Appeal and the Supreme Court of Kenya. (on appellate jurisdiction)

The ELC, according to Article 162(2) of the constitution, has equal status as that of the High
court. Therefore, if the claimants are aggrieved by the decision of the ELC, they may appeal to
the court of appeal to seek redress, pursuant to Article 164(3) of the Constitution. This has also
been manifested by the Henry Wambega (supra), whereby, after the ELC ruled against the
petitioners, they proceeded to lodge the claim as an appeal to the court of Appeal.

Should the claim not be satisfactorily resolved, the claimants my still move to the Supreme court,
as an appeal from the decision of the Court of Appeal, as per provisions of Article 163(3)(b)(i)
of the constitution of Kenya.

7
Henry Wambega and 733 others v Attorney General and 9 others (2024) eKLR
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  Legal basis of Thiga’s claim.

The National Land Commission Act has, in a detailed manner outlined what a claim of historical
land injustice encompasses. This is pursuant to section 15(2) of the Act, which provides for the
definition. Therefore, to determine the legal basis of Thiga’s claim, the following have to be
taken into consideration:

i). Was it occasioned by a violation of right in land on the basis of any law, policy,
administrative practice, treaty or agreement? (15(2)(a))

Thiga claims that the land was allocated to the white settlers during colonialism. This allocation
might have been made pursuant to the East African(Lands) Order in Council of 1901, which
particularly gave the commissioner of the protectorate, power to dispose of public land on terms
and conditions he may deem fit. The Crown Lands Ordinance of 1915 did also confer powers to
the colonial government to deal with Crown Land.

Under guise of such law, the land was hence allocated to white settlers, depriving Thiga’s family
of land that was rightfully theirs, as they had lawfully acquired good title to it.

ii). Did it result in their displacement from their habitual residence? (15(2)(b))

This particular piece of land was family land, purchased by Thiga’s great grandfather’s
grandfather. They had legally acquired it and was family land. However, after allocation to the
white settlers, they lost their control over it. This land has since, according to Nyenje’s findings,
been occupied by multinationals which have built there their regional headquarters. Therefore,
even after the end of colonial rule, this land was never reinstated to them hence the said
displacement.

iii). Did it occur between 15th June 1895 and 2010(15(2)(c)) and has it been sufficiently
resolved? (15(2)(d)).

Thiga asserted that the land was alienated from them during co colonialism as it was allocated to
the white settlers. There has also been no solution or proper redress offered seeing he was still
following up the case before his demise.

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Criteria for admission and processing of a claim of historical land injustice.

The NLC Act asserts that the claim has to fulfill particular requirements before it can be admitted
for processing, under section 15(3)

Thiga’s claim is capable of admission seeing as:

 It resulted in a form of historical injustice to the claimant(15(3)(a))

 It has been time barred under section 7 of the Limitation of Actions Act, as 12 years
have already passed since the land alienation took place. (15(3)(b))
 The claim is also permissible under section 15(4) of the NLC Act, seeing as the injustice
was occasioned by colonial occupation.

Claims under the Environment and Land Court.

As, aforementioned, the Henry Wambega and 733 others v Attorney General and 9
others8 case asserted that a claim is to be brought to the ELC as a constitutional petition,
seeing as it has no limitation as to time of institution.

The claimants would in this case be required to have enough evidentiary proof that would
link them and their said forefathers to the said piece of land, or else their claim would fail as
they had to demonstrate historical connection to the land. This is evidenced by the case of
Kiruwa and another v Weindaba and 7 others.9

This can be done by giving a generational tree to identify their ancestry and demonstrate
occupation by forefathers hence connecting the claimant to that suit land.

The court, however asserted that, while historical land injustices are recognized, land rights
under Article 40 of the constitution of Kenya are also to be considered, especially when
granting remedies.

Available Remedies.

 Compensation.

8
Ibid
9
9.Kiruwa and another v Weindaba and 7 others. eKLR

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  Resettlement

Part b

CHALLENGES NYENJE IS LIKELY TO ENCOUNTER IN REALIZING

HIS FATHER'S WISHES.
Nyenje is likely to encounter several significant challenges in attempting to realize his father's
wish to recover the 50 acres of land allegedly purchased in the 19th century and subsequently
allocated to white settlers during the colonial period.

These include:

I. Difficulty in Proving Ancestral Claims Against Registered Titles:

The land in question is described as being along Waiyaki way and occupied by multinationals,
suggesting it is currently held under formal, registered titles by private entities. Kenyan courts
have indicated that the mere fact that land was previously settled by one's forefathers, does
not by itself give a right to a descendant to have title to that land10. Any ancestral claim
might be considered extinguished by the chain of ownership in private hands. The court in
one case noted that the ancestral domain claim... has some support in some jurisdictions but
found that it cannot be imposed... in Kenya for our circumstances could be different. While
historical features like graves and shrines were raised as evidence in one case, the court did not
find them sufficient to prove the claim against registered owners, especially when a site visit
failed to locate them. Nyenje would face the challenge of convincing a court that ancestral claims
from the 19th century override legally registered titles held by the current occupants.

II. Doctrine of Laches and Time Limits:

The claim dates back to the 19th century and involves dispossession during the colonial period,
implying a delay of over a century. The doctrine of laches and time limits can be significant bars
10
The dictum of Justice Sila Munyao in Constitutional Petition No. 8 of 2019 which was formerly Mombasa High
Court Constitutional Petition No. 65 of 2011 Said Omar Mwitu & 5 Vs. Kwale International Sugar & 8 Others.
Kiruwa another v Weindaba 7 others (Environment Land Case 14of2021) 2024KEELC1663(KLR) (Judgment)

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to such old claims. Courts may find that there has been an inordinate delay in filing the claim.
In one case, the court declined to award mesne(intervening) profits for loss of user over 30 years
because the claimants did not mitigate their loss by commencing claims within a reasonable
time. The National Land Commission (NLC) argued in one appeal that a claim arising 33 years
prior should be dismissed due to delay and prejudice to the appellants, noting that witnesses may
have died or cannot be traced. Given the extreme age of the claim, Nyenje would likely need to
provide a reasonable excuse for the delay.

III. Lack of Credible Evidence:

To succeed, Nyenje would need to present credible evidence to support the claim. This would
involve proving the original purchase from the Dorobo in the 19th century, the family's
subsequent occupation, the specific act of allocation to white settlers, and identifying the exact
parcel of land. There is difficulty in proving historical claims without specific documentation.
Claims based on general witness statements or unproven historical accounts may be deemed
insufficient. The court expects proof of residence, dispossession, and supporting documentation.
Thiga's deathbed plea provides context but not the specific evidence required by a court.

IV. Burden of Proof:

As the claimant, Nyenje would bear the burden of proof to substantiate his claims. He would
need to demonstrate a legitimate cause of action and prove that his family's rights were infringed
upon. This is a substantial hurdle when dealing with events from such a distant past and against
current titleholders who likely have legal documentation.

V. Establishing Locus Standi:

Nyenje needs to establish his legal standing to bring the claim on behalf of his deceased father
and the family. This might involve proving his relationship to Thiga and the original ancestors,
potentially requiring a "generational tree" as mentioned in Wambega 733 others v Attorney General
9 others (Civil Appeal E028of2020) discussing ancestral claims. Under article 40 three particulars
of infringement of the appellants rights are pleaded against the 1st, 8th and 10th respondents. The
gist of these is that the three named respondents failed to declare the suit lands ancestral lands, or
trust land by virtue of the history of the land; failure to remedy the situation through legislation
among other mean; and by failure to ensure the 2nd to 6th respondents are compensated and to
have the land adjudicated. The learned Judge found that the appellants “have not given this court

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 generational tree to identify their ancestry and demonstrate that it is actually their forefathers
who were occupying the suit lands…The ancestral domain (…) has some support in some
jurisdictions…We cannot impose what has been held in one jurisdiction into our country for our
circumstances could be different. The situation in Kenya is different...” Representing a claim on
behalf of an entire historical descent group against specific titled individuals or entities can be
complex.

VI. Conflicting Legal Frameworks:

The claim spans the colonial period and the modern era, involving potentially different legal
regimes concerning land ownership and customary rights. The Kenyan legal system, shaped by
colonial history, has grappled with the relationship between customary tenure and statutory,
registered titles. While Professor Okoth-Ogendo's work highlights the complexity of defining
property in the African social order beyond Western notions of exclusive ownership, the current
legal framework tends to prioritize registered title.

VII. Potential Public Land Issues:

Depending on the history of the land, it's possible it was at some point designated for a public
purpose or acquired by the government. If land was set aside for a public purpose, subsequent
allocations of that land are considered illegal and the resulting titles invalid. However,
establishing such a history for a specific plot occupied by a multinational would require access to
historical government records and would be another significant evidentiary challenge.

VIII. Uncertainties Regarding the National Land Commission:

While the NLC has a mandate to investigate historical land injustices, there is no clarity in the
process, timelines, or the extent of the NLC's power to overturn existing registered titles held by
private entities based on very old historical claims. In Chief Land Registrar & 4 others v Nathan
Tirop Koech & 4 others [2018] eKLR, the NLC supported an appeal arguing that a claim of
historical injustice over 30 years old should be dismissed due to delay, suggesting that even
within the NLC framework, delay can be a significant factor.

IX. Political Obstacles

Nyenje may encounter an additional obstacle in his quest. The majority of the beneficiaries of
these historical land injustices have political connections, which is the first factor contributing to
the lack of political goodwill and support. This is the reason why there is still a backlog of cases

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pertaining to historical land injustices in the courts. The excessive concentration of power, elite
corruption, nepotism, and manipulation of redistributive politics were all characterized as
governance issues in the Ndungu Report. Regarding the aforementioned statement, Ndungu's
efforts may be in vain because the people who own the land where multinational corporations'
regional headquarters are located may be political heavyweights. As a result, his efforts may
encounter political interference and opposition from those who have profited from the status quo.

X. Challenges in Land Restitution Efforts

The process of land repossession and resettlement presents significant challenges, particularly for
individuals like Njeru. A major concern is the potential for social unrest stemming from disputes
over land currently held by multinational companies, which often possess legal titles to these
properties. This situation creates conflicting interests between those seeking redress for historical
injustices and the current titleholders, complicating efforts to achieve equitable solutions.
The Kenya Land Alliance has highlighted the sensitivity of balancing these competing claims,
emphasizing the need for careful navigation to address the rights of dispossessed individuals
while respecting existing legal ownership. Failure to manage these tensions effectively could
lead to heightened social discord and impede the resettlement process.

CONCLUSION.
Nyenje's task is legally complex with significant challenges, primarily due to the age of the
claim, the lack of documentation, the difficulty of proving ancestral rights against existing
registered titles, and the likely application of legal doctrines that penalize inordinate delay.

WORD COUNT - 2955

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