Laying ground rules for land justice in Kenya
Fifty-six years since Kenya achieved independence, land injustices in the country remain unresolved
On December 12 1963, in the wake of a bloody liberation war, Kenya cast off the shackles of colonialism and won its independence from Britain. This was a war — like many in Africa — that was "not about having a black president or flag", says Kenyan land economist James Wanjohi. "It was about land."
Just over 56 years later, land injustice remains an issue in the East African country. Now agricultural multinationals have found themselves at the centre of the storm, as local authorities dispute their tenure and communities call for the return of land and compensation for dispossession.
Under colonial authority Kenyans were evicted from their ancestral lands to make way for European settlers and foreign companies — including in the tea-growing regions of Kericho, Bomet and Nandi counties in the Rift Valley highlands. Among those to benefit from the 999-year leases awarded on "Crown" property were companies such as Brooke Bond (now Unilever tea company) and the African Highlands Produce Company (now multinational tea company James Finlay). Both were formed in the 1920s.
But while many Kenyans hoped for restitution at independence, little was done to benefit those who’d been dispossessed. Instead, postcolonial leaders in many instances benefited from land restitution deals at the expense of the very people they had fought to liberate, as detailed in the 2013 report of the Truth, Justice & Reconciliation Commission of Kenya.
As far as the post-independence government was concerned, the 999-year leases were unaffected.
Until 2010, that is. In that year, a new constitution created a devolved form of governance, dividing the country into 47 counties, each headed by a governor, who was to be elected in 2013. With that, agriculture and land matters — including discretion for lease tenure — passed to county authorities. Importantly, the new constitution scrapped 999-year leases, stipulating that only leases for a maximum 99 years could be granted.
Problematically, the constitution did not specify what would happen to the 999-year leases. Would they run for 99 years, starting from 2010, or lapse 99 years from the original date of contract? Or would the constitutional changes render them invalid?
Given the lack of legislative guidance, the issue remains contested.
Both former National Land Commission (NLC) chair Muhammad Swazuri and Nzamba Gitonga, a senior lawyer who chaired the committee of experts who drafted the 2010 constitution, are of the view that the 99 years took effect in 2010.
"The 999-year leases reverted automatically to 99, effective from the promulgation of the new constitution in 2010," says Gitonga.
If the governors truly believe that the leases have expired … they would have gone to court for orders to repossess the landStephen Orina
Lawyer Renny Langat holds a different, minority view. "The point of the law is that if a lease had been used for 50 years by 2010, the holder [would be] left with 49 years before expiry," he says.
As far as the governors of Kericho, Bomet, Nandi, Muranga and Kiambu are concerned — and as they’ve made clear repeatedly in public meetings — the constitutional change effectively cancelled the 999-year leases.
Nandi governor Cleophas Lagat, for example, insists companies must reapply for leases, subject to the terms and conditions laid down by county authorities. In the case of Nandi and Kericho, these conditions will require companies to set aside tracts of their land for local communities.
Lagat believes the constitution abolished the 999-year leases and simply fixed tenure to a maximum leasehold of 99 years, starting from 2010. To suggest otherwise, he told a forum in the town of Kapsabet last August, "is a mischievous and obnoxious interpretation of the constitution to serve the interest of landowners".
But lawyer Stephen Orina believes the governors are simply pushing their luck, playing politics to boost their appeal to voters.
Even if the leases had fallen due, he says, the law provides that a leaseholder must be notified four years before expiry to start the process of renewing the land lease. If it is not renewed, the land will automatically revert to the county government on expiry.
"If the governors truly believe that the leases have expired … they would have gone to court for orders to repossess the land," Orina says.
The governors have upped the pressure on foreign companies in other ways. Last March, for example, Kericho governor Paul Chepkwony increased land rates for multinationals by more than 3,200% — from $3 to $100 an acre. In the same month, Lagat upped rates from $1 to $50 an acre.
A reliable source in Chepkwony’s office, who did not want to be named because he is not authorised to speak to the press, says: "At the time the governor announced the new land rates, the county assembly of Kericho had not approved them, as required by law."
The increase has been suspended, following legal action by the Kenya Tea Growers Association, and the parties appear to be set for a dispute resolution tribunal.
Despite repeated requests for comment, the Kericho government had not responded to the FM at the time of going to print.
In September, Chepkwony issued a 14-day notice to all 10 multinational tea estates in Kericho — which together have about 320,000ha under tea bush — to surrender their land-lease documents pending possible repossession of their land. But the notice expired, with no action taken.
The companies, including George Williamson, James Finlay and Unilever, were not available for comment, and the matter is now before the courts.
The governors aren’t the only ones to challenge companies on the land issue.
Early last year the Kericho government — on behalf of the Kipsigis and Talai communities — petitioned the NLC to give direction regarding land injustices. The groups want foreign companies to surrender about 80,000ha and compensate them for what they say is the illegal use of their land.
In its ruling, the commission said: "The ancestral land ought to have been surrendered to the affected communities at independence. The government of Kenya should officially acknowledge that land was unlawfully taken ... The British government and the multinationals [must] pay victims mesne profits [damages] for the loss of use of their land from 1902."
The NLC also said the multinationals should lease the lands from the Kericho and Bomet governments at commercial rates, and called for a new survey of multinationals’ land in the two counties.
"Any lands in excess of the size documented in official records should be reverted to the county governments ... to be held in trust on behalf of the residents of the two counties," it said.
It’s not only in the Rift Valley that companies are feeling land anger.
Del Monte, whose land holdings extend from Kiambu to Muranga counties in central Kenya, is facing similar issues. Del Monte grows and processes fruit for the local and export market and is the biggest canned-pineapple exporter in Kenya.
The company has been in and out of court since 2015 over the renewal of its leases.
Paul Mwangi, a local land surveyor and consultant, says the company initiated the renewal process on the understanding that its leases reverted to 99 years from the date of issue and are thus set to expire shortly.
"The company was complying with the four-years requirement [for renewal applications]," says Mwangi.
In 2018, Del Monte signed a memorandum of understanding with Kiambu governor Ferdinand Waititu. The governor agreed to renew the lease for the company’s 3,200ha in the county if Del Monte surrendered 250ha to the government.
But the matter stalled after Waititu was suspended — and successfully impeached — for corruption.
In Muranga, county authorities have also demanded that the company surrender land — 1,200ha — before its lease is renewed. And the local Kandara Residents Association has petitioned parliament for the return of 1,440ha of Del Monte’s land.
But there’s a dispute about how much land Del Monte actually owns. The community claims the Muranga holding is 8,800ha, but Del Monte says that includes the 3,200ha in Kiambu — so its Muranga holding is just 5,600ha.
In March, the NLC directed that the land should be resurveyed and that anything above the 5,600ha declared by Del Monte should be shared between the residents’ association and the county government at a ratio of 70:30. It also ordered the company to surrender all public utilities on its lands to the county government to ensure community access. This includes six clinics, eight nursery schools, three primary schools and two secondary schools.
what it means:
A lack of legislative guidance has left multinationals in limbo, unsure of their tenure rights
Parliament has now ordered that a new survey be finalised by the end of the month.
Del Monte MD Stergios Gkaliamoutsas was not available for comment. But he previously reacted to the NLC’s proposed resurvey of the land with confidence.
"We are ready to surrender any land found in excess of what we have declared; but no such land will be found," he told journalists late last year.
Gkaliamoutsas added that it was the first time the company had faced hostility from residents and authorities. "All these complications are coming up because of the leases’ renewal," he said. "Nobody ever complained before."
Land expert Francis Wasike says anxious landowners are being led a merry dance by county governments. "What they want is one pronouncement, with finality, that they either return the land to the people or they have their leases renewed," he says.
Until the matter is resolved, it leaves affected communities and multinationals alike in limbo.
"Independence was phase one, and land repossession was to be the final phase," says economist Wanjohi. Without a permanent solution, he says: "I foresee land revolution coming in a similar style to Zimbabwe."