Chapter 3
EARLY LAND POLICY
" It has been laid down as 'a principle from which no civilized Government would think of departing, that in countries acquired by conquest or cession, private property, whether of individuals or communities, existing at the time of session or conquest, is respected.'"
SIR FREDERICK LUGARD : The Dual Mandate in
Tropical Africa, p. 288.
" The native inhabitants of a protectorate have not become the nationals of the protecting State, and that State cannot validly compel them in any particular way or deal with their property, unless the right to do so flows from one of the transferred powers."
M. T. LINDLEY : The Acquisition and Government of Backward Territory in
International Law, p. 323.
THE point must be borne in mind that all early travellers in East Africa recorded the existence of immense areas of land which were totally unoccupied. Parts of these were buffer States of " no man's land " between the settlements of mutually hostile tribes. Much of the unoccupied area was inferior land where the soil, of gneissic origin, is light and sandy, where surface water is scarce and weather conditions severe. The choicest areas of agricultural land were all in the possession of natives. Mr. Francis G. Hall, one of the Imperial Company's Agents in the interior, after whom the present-day township of Fort Hall is named, described the Kikuyu country as extending for a length of about 100 miles and a breadth of 15 to 18 miles. " The country consists," he wrote, " of a number of spurs with narrow valleys through which run beautiful streams of clear water. With the exception of small patches of excellent grass, which are kept for grazing purposes, and a few small swamps, every available piece of ground is under cultivation, and the district may be described as one vast garden." Still earlier, Captain Lugard, now Sir Frederick Lugard, G.C.M.G., C.B., D.S.O.) had reported: "The cultivation in Kikuyu is prodigiously extensive, indeed the whole country may be said to be under tillage.”
The fact that immense areas, entirely suitable for grazing not made use of, is to be attributed to the reign of terror exercised by the Masai. It was pre-eminently the Masai tribe which held vast tracts of country open for European penetration, because they kept these areas from being occupied and used. To them also may be attributed the persistence and increase of a wild fauna which makes Kenya Colony to-day the most richly stocked big-game area in the world. They did not kill and eat game themselves, and they kept meat-eating tribes, such as the Akamba, off the prairies where the game abounded. They also waged unceasing war against the lion, thereby restricting the serious toll that it levied upon the antelope life of the plains. Up to the very limits of the grass-land, where the elevated prairies ran as embayments into the wooded foothills of the Escarpment, there were Masai villages. Inside the fringe of forest were the enormous clearings of that nation of agriculturalists, the Kikuyu tribe. Between the two tribes, border hostilities were frequent. For Kikuyu villages anywhere near the border-line to keep flocks of sheep and goats, or, worse still, small herds of cattle, was to ensure a Masai raid sooner or later. The Miia and Lukenya Hills, some 25 miles nearer the coast, formed another low mountain mass rising out of the Masai-infested prairies below. The Company's officials found the edge of this tableland manned by outposts of Kamba warriors, who maintained a watch over the leagues of grass-land below them to guard against surprise by Masai raiding parties. Rough stone shelters were improvised, and in each a small group of Kamba sentries remained on watch. Regular reliefs, carrying their rations for three or four days, came from the villages behind to this line of rudimentary blockhouses. It was a well-organized defensive measure, and one essential to the safe custody of the Kamba herds which grazed on the slopes of the hills or on the margin of the plains below. The territory of these sturdy defenders has now been made over by Government to European landholders, and the Miia Hills to-day present a solid block of " white " farms.
The Kamba natives in the days before white settlement began enjoyed some degree of protection from the Company's European staff at Machakos station, which was an important centre both in the days of the Imperial British East Africa Company and later under Government occupation until it was eclipsed by Nairobi. Apart from this element of security, they possessed another safeguard against Masai aggression in a craft of bowmen, whose reputation stood as high among surrounding tribes as did that of the English archer of eight centuries ago among his hostile neighbours. Frankly, raids into Ukambani, as this territory was called, were not safe for warriors like the Masai, who depended chiefly on the spear and knobkerry. The Kikuyu bowman, although deserving of some respect in forest paths and ambuscades, was not so formidable an antagonist, and it was not until Fort Smith was established among the Kikuyu cultivation that there began to be some such element of safety for the Kikuyu as was already enjoyed by the Akamba. One of the rivers that flowed out of the deep forests into the sun-baked plains below was called by the Masai " nairobi," the word meaning cold. It was up this valley that the Uganda Railway line was subsequently to run, and thus it has happened that it is a Masai name which the capital of the Colony now bears.
The Imperial Company was, from the first, quite alive to the value of these vacant spaces for colonization. " The Directors contemplated, from the first, the colonization of the vast unoccupied areas adjacent to the coast with British Indian families of the agricultural class." " This would serve as a relief for the surplus population of India." " The climate and soil of East Africa are admirably adapted for the requirements of the Indian agriculturalist," wrote one of the Directors in 1892, " and he will find the trade of the coast already monopolized by his fellow-countrymen and co-religionists, both Hindoos and Mahomedans, who will be ready to welcome and forward his interests." None of the treaties which tfie Company had entered into with the tribes in the interior involved the latter in any loss of rights over lands in tribal occupation. In its treatment of the natives, said Chancellor of the Exchequer Mr. Goschen during a debate in Parliament on March 4th, 1891, " the East African Company had a blameless record." The Company, said an early Government report,1 (1 Africa No. 7 (1897), Cd. 8683.) " were naturally desirous of protecting the rights and interests of the native populations under their rule, and of discouraging land speculators from taking up large tracts for the purpose of floating land companies, or claiming land on the line of the railway, etc." In April 1891 Sir Francis de Winton, the Company's Administrator, issued a proclamation forbidding, outside the Zanzibar Dominions, " all dealings in land between Europeans of whatever nationality and natives." Three years later they re-enacted this prohibition and applied it to the Zanzibar Dominions also.
Still, the Imperial Company recognized that there was much vacant land which might be let, and accordingly, on July 4th, 1894, a set of land regulations was published.
These allowed for "country lots," on lease not exceeding twenty-one years, but renewable, no fixed rent being specified. For grazing leases, not more than 20,000 acres could be had in one block, and the annual rent was one half anna (i.e. a halfpenny) an acre. On agricultural land, leases of not more than 2,000 acres might be had at a rent of half anna an acre for the first five years, and then ' rising in a graduated scale.' Homesteads were of 100 acres at a rent of 4 annas an acre for the first five years, during which occupation was compulsory. Thereafter, if the farmer had spent 5 annas an acre in permanent improvements, the fee-simple would be conveyed to him.
On July 1st, 1895, the Foreign Office formally took over the country from the Imperial British East Africa Company. Sir Arthur Hardinge, as His Majesty's Agent and Consul-General, directed its administration from Zanzibar under the orders of the Secretary of State for Foreign Affairs in London. The Company's Land Regulations remained in force after the transfer of the territory, and were not formally repealed until January 1897, in which month a new set of Regulations was issued by the Foreign Office.
These empowered the Commissioner, as Sir Arthur Hardinge's position had now come to be termed, to grant to any person a certificate authorizing him to hold and occupy the land described in it for a term not exceeding twenty-one years, at the end of which the permission would be renewable. Conditions as to rent, residence, cultivation and other matters were to be inserted in the certificate, and mineral rights were expressly reserved to the Government.
Prior to this, the Earl of Kimberley, as Secretary of State for Foreign Affairs in Lord Rosebery's Government, had supplemented the Company's Regulations by ordering that no transaction in land in the chartered territory outside the districts effectively controlled by the Company should be valid unless registered before H.M. Acting Commissioner. Landgrabbing was already in progress, and Government Notices were issued on April 26th and August 31st, 1897, to the effect respectively that " certain evil disposed persons " had been acquiring land from native women at inadequate prices owing to the ignorance of the owners as to its true value, and had also been laying claim to waste lands along the coast strip. All claimants to possession of such purchased lands were required to submit details to the Administrative Officer in charge of the district for scrutiny. As regards privately owned land required by Government for public purposes, the Land Acquisition Act 1894 of India was brought into force by a Notice dated May 27th, 1896. A Notice as to the assumption of this power to acquire private land by paying current value and compensation was published by Sir Arthur Hardinge at Mombasa on June 12th, 1897. It was similarly applied in the Uganda Protectorate on June 23rd, 1897.
The term East Africa Protectorate was formally applied to the Eastern portion of the territory over which the Imperial Company had operated in a Foreign Office Notice of August 31, 1896. This appeared in the London Gazette of September ist, 1896, as follows :-
" It is hereby notified for public information that all territories in East Africa now under the Protectorate of Her Majesty, except the Islands of Zanzibar and Pemba and the Uganda Protectorate, are for the purposes of administration included in one Protectorate, under the name of the East Africa Protectorate.
" This Protectorate includes the territories bounded on the north by the River Juba, on the east by the Indian Ocean, on the south by the German sphere, on the west by the Uganda Protectorate, and also all adjacent islands between the mouths of the Rivers Juba and Umba."
It must be remembered that the Uganda Protectorate at this time and onward to April ist, 1902, included a large portion of what has since become Kenya Colony.1 (1 Fig. 6, facing p. 46.) An " Order " of Lord Lansdowne's dated March 5th, 1902, prescribed that this " Eastern Province " should become " the Kisumu and Naivasha Provinces " of the East Africa Protectorate. The present-day settled areas on the Rift Valley, the Mau Escarpment, the Uasin Gfshu Plateau, Trans-Nzoia, Lumbwa, Sotik, Lower Molo, Muhoroni, Kaimosi and Nandi were all in the Uganda Protectorate, though some of them were only imperfectly known It is of interest therefore to trace the actual official instrument under which Government assumed the right to sell, lease and give away areas of land here.
It is contained in a Government Notice signed on April 9th, 1900, by Sir Harry Johnston, H.M. Commissioner in the Uganda Protectorate. This " Circular No. 11 " of 1900 says 1 (1 Official Gazette of the East Africa and Uganda Protectorates, vol. i.) :-
" In virtue of Treaties and Agreements concluded with the Kings and Chiefs of the aforesaid (Uganda) Protectorate and its adjoining Territories, H.M. Government has acquired the sole right of disposal over the waste and uncultivated lands of the said Protectorate and its adjoining Territories ; that in addition it is forbidden to any persons not native of the Uganda Protectorate and its adjoining Territories to acquire land either by purchase from the natives, by deed of gift, or by occupation, without the prior consent of the principal Representative of H.M. Government administering the Uganda Protectorate. All applications for land must be addressed to the Commissioner's Office, Entebbe, Uganda."
The surveyed route of the Uganda Railway at this time ran for 110 miles through this " Eastern Province " of the Uganda Protectorate.2 (V. Fig 6) To make the public ownership of land secure alongside this portion of the Uganda Railway, a subsequent Notice was published by Sir Harry Johnston on May 10th, 1900, appropriating to Government ownership a one-mile zone on each side of the surveyed line. This read as follows 3 (3 O.G. (E.A. & U), vol. i.) :-
" In further reference to Circular No. 11 of 9th April 1900 and by order of Her Majesty's Principal Secretary of State, it is hereby notified that Her Majesty's Special Commissioner and Commander-in-Chief for the Uganda Protectorate has, in pursuance of the powers vested in him, appropriated from this date for public purposes (subject to any right of ownership which may be proved to his satisfaction) all lands between the Eastern Frontier of the Uganda Protectorate and the East Coast of Lake Victoria Nyanza which are situated within one mile on either side of the Line of the Uganda Railway, wherever finally constructed.
" All claims to ownership of land within this zone following the Railway Track must be lodged with Her Majesty's Special Commissioner within three months from the date on which this Notice is published in the Official Gazette of the East Africa and Uganda Protectorate."
Sir Harry Johnston was enthusiastic about the attractions of this Eastern portion of his Protectorate (as it was then) as a possible home for white people. In an early report to the British Government he said :-
" In the Eastern part of the Uganda Protectorate there is a tract of country almost without parallel in tropical Africa : a region of perhaps 12,000 square miles, admirably well watered, with a fertile soil, cool and perfectly healthy climate, covered with noble forests, and, to a very great extent, uninhabited by any native race. This area lies at an altitude not less than 6,000 feet, and not more than 10,000 feet. It is as healthy for European settlers as the United Kingdom, British Columbia, or temperate South Africa. ... I am able to say decidedly that here we have a territory (now that the Uganda Railway is built) admirably suited for a white man's country."
The Land Regulations of January 10th, 1897, for the East Africa Protectorate, which have been alluded to, did not have a very long vogue.
By December 29th of the same year they were superseded by a Notice which began :-
" Whereas under the Africa Order in Council, 1897, Her Majesty's Commissioner and Consul-General for the East Africa Protectorate has power to make Regulations for peace, order, and good Government : It is hereby notified that the Commissioner and Consul-General has, in pursuance of the powers aforesaid, made the following
" Regulations.
" 1. The Commissioner may, if he thinks fit, grant to any person a certificate authorizing him to hold and occupy the portion of land described in the certificate for a term not exceeding ninety-nine years."
Ten other clauses followed. The land was to be held and occupied according to the terms of the certificate. In any particular case, such conditions as might be deemed necessary might be inserted. No certificate would be granted in respect of any land which was lawfully held and occupied by any person, " whether a native or not a native," who held such land under a documentary title which Her Majesty's Commissioner was prepared to recognize.
It may here be interpolated that no tribe in East Africa had any such documentary title. Years later a suggestion was made by Lord Crewe, when Secretary of State for the Colonies in Mr. Asquith's Government of 1908, that a treaty should be made with each separate tribe in the country, giving to each tribe and clan the absolute possession of such land as it might claim in the light of tradition, supported by reasonable expectation of present and future tribal needs. By that time, however, the suggestion fell on deaf ears, and Lord Crewe did not remain in the Colonial Office long enough to press for its adoption. Up to the year 1926 the tribes of Kenya have had no legal right to their lands. It is true that in a despatch S.211 dated August 20th, 1914, Sir Henry Conway Belfield, the Governor at that time, promised that the land of the Kikuyu tribe should not be further interfered with, and when two years later a Committee of three Heads of Government Departments recommended, with one dissentient, that the Kikuyu Native Reserve should be reduced by 10 per cent, in order to provide more farms for Europeans, he reported to the Secretary of State in August 1916 that " the acquisition of such lands from native areas should not be entertained." But the fact has been, up till 1926, that encroachment might be effected by any Governor who could advance sufficiently plausible excuses for it to elicit concurrence from a Secretary of State in London. Even in September 1924 Sir Robert Coryndon, as Governor of Kenya, was proposing to establish colonies of white farmers on picked sites inside the already seriously invaded Native " Reserves," in order to ensure the uplift of the surrounding natives.
The point must here be noted that a profound departure in method took place between the land policies of the Uganda Protectorate and the East Africa Protectorate. The Government of the former, in order to start with a clear understanding of land ownership, at any rate in the more closely administered parts of its territory, publicly insisted that all claims by non-natives to land in the Uganda Protectorate should be lodged within a period of three months, after which, it said,1 (1 Africa No. 7 (1897).) " no claims can be taken into consideration in the Land Settlement." Next, by way of eliciting from the natives themselves a statement of what native interests in land existed, the Government, in ceremonial conclave, invited a clear statement of what land they wanted. This was then made over to them by treaty, and the remaining land of the country was available, in the hands of the local Government, for alienation or for retention as State domains By contrast, the East African practice continued to leave decision on this all-important point to the judgment of the Commissioner 2 (2" Clause 2 of E.A. (Lands) Order in Council, 1901, in O.G., October ist, l901, p. 249) (in modern parlance, the Governor), and it will be made plain in the pages of this book that the judgment of a Governor can be influenced. Still, as long as these Regulations of December 1897 remained in force, they debarred any alienation of land which would be injurious to native interests. Section 7 said :-
" A certificate will not be granted in respect of any land which at the time of the commencement of these regulations is cultivated or regularly used by any native or native tribe, but may be granted if the Commissioner, after such inquiry as he may think fit, is satisfied that such land is no longer so cultivated or regularly used, and that the grant of a certificate would not be prejudicial to native interests."
If this provision had been retained even until 1903, the alienation of the Rift Valley and the subsequent scandal of the Masai Move 1 (1 V. Chapter VIII.) would not have been possible. It was, however, formally repealed on September 27th, 1902, upon which date the first Crown Lands Ordinance, shortly to be described, took effect.
After Sir Arthur Hardinge had been discharging the duties of Commissioner for a year or two he began to press for the grant of " somewhat more favourable conditions " for bona-fide settlers, and suggested 2 (2 Africa No. 7 (1897), P- 63.) " that if on technical grounds the freehold of unoccupied lands could not be granted in a territory in which Her Majesty does not enjoy sovereign rights, a certificate such as that provided by the Regulations should be granted for a term of, say, 999 years, a premium representing 15, or at most 20 years' purchase being substituted where the applicant desired it for the rent, which . . . should in the case of unoccupied lands be 1 pice or a quarter anna an acre."
This, if it had been adopted, would have meant the grant of unoccupied land for a term of 999 years upon a cash payment of twenty pice (= 5d.) an acre. It may be thought that this a sufficiently favourable condition. The next Commissioner, Sir Charles Eliot, was, only a year or two later, to improve conditions for settlers still further by offering land for nothing in 5,000-acre blocks.
The Administration in Sir Arthur Hardinge's time adopted clearly denned procedure in defence of native rights.
After reporting, with some arithmetical haziness, that " in the interior a fair average price from a native point of view, for cleared and cultivated lands would be a cow for every hundred acres, or, estimating the value of a good cow at about 50 rupees, about two rupees an acre " it was laid down that the Administration refused to sanction such sales unless the local District Officer certified :-
(1) that the vendor had a lawful title to sell,
(2) that the transaction had been explained to, and was thoroughly
understood by, him,
(3) that it was in itself in conformity with the customs of the tribe
within whose bounds the land was situated.
These requirements were explained in the following terms :-
" This is all the more necessary as over large tracts of country the conception of absolute ownership of land and of the right to sell it, or exclude other cultivators, even if the land is abandoned and left uncultivated, does not yet exist, and it is only in a limited number of districts (e.g. the Kikuyu or Kenia district of Ukamba and in the Mahomedan region generally) that the Chiefs, as distinct from the community, can really alienate land situated within the territory considered as its own by the tribe."
It may here be mentioned that the most expensive land in the country at this time was building-land in Mombasa Island. This was worth £30 an acre, or for land near the railway or in specially advantageous positions, £50 an acre. (By 1920 such lands had changed hands at prices exceeding £15,000 an acre.)
By 1902 the representations of Sir Arthur Hardinge and his successor, Sir Charles Eliot, who had assumed the Commissioner-ship of the Protectorate in 1900, had borne fruit. A Crown Lands Ordinance, 1902,1 (1 O.G., 1902, p. 312.) was promulgated, and thereby became the law of the land without any public discussion locally. The prohibition of the sale of land whereby native interests would be adversely affected disappeared, and there was substituted the milder requirement that " in all dealings with Crown land regard shall be had to the rights and requirements of the natives." This was coupled with a stipulation that " in particular the Commissioner shall not sell or lease any land in the actual occupation of the natives." These requirements, although constituting a relaxation of the standard of trusteeship previously recognized, were satisfactory to this extent, that the demand for a " regard " of native rights was all that need be asked for by a Government intent upon native welfare. It was almost valueless, however as a measure of control of a local Government indifferent to or enthusiastic about, the encroachment of Europeans upon native holdings. As " occupation " was not defined, but left to the interpretation of the local Government, opportunities for construing temporary disuse as cessation of occupation were unceasing, and the native, under the letter of the law, could be victimized every time. Temporary disuse might arise through putting land to lie fallow, or as a result of sickness, matrimonial infelicity, drought, flood, death or pestilence. Native villages might be, and were, closely surrounded by or actually included in allotments to Europeans. Section 31 of the Ordinance says :-
" The Commissioner may grant leases of areas of land containing native villages or settlements without specifically excluding such villages or settlements, but land in the actual occupation of natives at the date of the lease shall, so long as it is actually occupied by them, be deemed to be excluded from the lease. . . . Any land within an area leased which has been in the occupation of natives shall, on ceasing to be so occupied, pass to the lessees."
The invitation to any unscrupulous immigrant to use influence in a variety of directions to secure the " non-occupation " of some Naboth's Vineyard within the boundary of his own holding is apparent enough here.
A modification of this provision lay in the fact that disputes between lessees of land and natives occupying land within or near the area leased had to be referred to the Collector of the District. In the event of either party being dissatisfied with the finding, an appeal might be made to the Sub-Commissioner of the Province, whose decision was final and binding on both parries. This provision was useful, as far as it went. Its mere inclusion must be regarded as a high testimonial to the character of the British Administration officers, whose sense of duty was dearly regarded by the British Government as an adequate defence of subject natives against the predatory desires of men of the officers' own kith and kin. It is only because the administration of this Law was better than the Law itself that East Africa was not involved in serious native trouble during the early days of settlement.
Still, the fact remained that, under pressure from Government House in East Africa, the Home Government had relaxed the standard of trusteeship that had previously prevailed and - a result, a large sweep of Kikuyu territory, partially depopulated at moment as a result of the great famine and smallpox visitation (described m the next chapter), passed out of native hands.
For ever?
*****
It may be stated that not only the Administration officers but also the Land Officer discharged what they conceived to be their duty with a disregard of pressure from interested parties which involved some of them in animosities that pursued them relentlessly not only as long as they remained in the Service, but even after they had left it.
In spite of modifications contained in this new Land Ordinance, it was far from popular among land-hungry immigrants in East Africa. The hand of the Foreign Office was far too apparent in its pages.
The Commissioner might not sell more than 1,000 acres of Crown Land in one lot without the approval of the Secretary of State. The Commissioner might at any time enter and view the state of any land sold, and if it remained apparently unoccupied for more than twelve months, he might give six months' warning, and, if no activity resulted, might resume possession of the land for the Crown. No land might be leased for a longer term than 99 years. Holders might not assign their land, except by will, without the previous consent of the Commissioner. They were required " to use and develop the natural resources of the land leased with all reasonable speed, having regard to all the circumstances of the case." Their lands were subject to several servitudes : they had to allow roads to be made for the public service ; to allow materials for road-making to be taken by the Government's Road Authority ; to permit travellers to encamp for a period not exceeding 48 hours on any uncultivated part of the land which might be more than a quarter of a mile distant from a dwelling-house ; to allow access by travellers to any stream or lake on the land ; to erect reasonable boundary marks ; to permit the erection of telegraph-poles and lines, sewers, waterpipes and electric lines in or across the land. Moreover, if any holding exceeded 100 acres in extent, Government might construct new roads, railways and canals across it without paying for the land, though compensation was to be paid for any buildings damaged. In the case of a plot of less than 100 acres, compensation had to be paid for the land also. Finally there was a stipulation that at the end of the lease all buildings on the land should revert to the Crown without compensation being paid. This would have been an indefensible provision if any tangible revenue were going to be exacted by the Crown from landholders. For the next twenty years, however, the yearly revenue that was to accrue to the Protectorate Treasury for the use of millions of acres of land has been trivial. It amounted to about three-halfpence per acre per year averaged over grazing lands, farm lands, plantations and town plots. So, viewed in retrospect, there seems to be some justification for that provision for securing from landholders something of tangible value especially since this is only to take place after a demand has been waived for a period of 99 years.
The conditions under which land was to be held having now been described in sufficient detail, it remains to allude to the terms upon which it could be obtained.
A Land Notice in the Official Gazette of August ist, 1902, stated that agricultural and pastoral land of average quality, suitable for homesteads, might be obtained in blocks up to 1,000 acres in size. The price for freehold was two rupees (2s. 8d.) an acre. If taken on lease for terms up to 99 years, the rent was to be Rs. 15 (£1) per 100 acres per annum. Land suitable only for zebra or ostrich farming could be had at much lower rates, according to locality, whereas land " in the immediate vicinity of townships " was only to be had at special rates, according to value. Land within one mile from the Uganda Railway, or near the coast towns or in Mombasa Island, or land believed to contain india-rubber or other valuable products, would, as a general rule, only be leased and not sold. On all lands, mineral and water rights remained in the hands of Government.
In the earliest days, when the first land grants were being made by Government, a fixed charge of thirty rupees (£2) was made to cover the cost of preparation of documents. It was always the case, moreover, that the applicant had to pay the cost of the survey of his holding. These charges were made on a very light scale which was laid down in the Gazette of January 15th, 1900, under " Fees and Royalties Regulations of 1899."
The rights and powers of Government were further defined at this time in an Order in Council issued on August 11th, 1902. The clauses dealing with land were the following portions of Articles 2, 7 and 12 :-
" Whereas the territories of Africa situate within the limits of this Order are under the protection of His Majesty the King and are known as the East Africa Protectorate, "
And whereas by Treaty, grant, usage, sufferance and other lawful means, His Majesty has power and jurisdiction within the said territories :
" Now, therefore, His Majesty ... is pleased . . to order . .
as follows :-
"2. In this Order-
Crown lands ' means all public lands in East Africa which are subject to the control of His Majesty by virtue of any Treaty, Convention, or Agreement, or of His Majesty’s Praaotectorate, and all lands which shall have been acquired by His Majesty for the public service or otherwise howsoever ;
" 7 All rights of His Majesty in or in relation to any Crown lands shall vest in and may be exercised by the Commissioner for the time being in trust for His Majesty, or if the Secretary of State at any time with respect to all or any such lands by order under his hand so directs, in such other trustee or trustees for His Majesty as the Secretary of State may appoint.
" 7 (3) The Commissioner, or such other trustee or trustees, may make grants or leases of any Crown lands, or may permit them to be temporarily occupied, on such terms and conditions as he or they may think fit, subject to the provisions of any Ordinance.
" 12 (3) In making Ordinances, the Commissioner shall respect existing native laws and customs except so far as the same may be opposed to justice or morality."
This Land Legislation was acted upon, though it evoked a great deal of hostile comment from immigrants, and an Annual Report of the Protectorate 1 (1 Cd. 2331, Africa No 15 (1904).) for the year 1903-4 stated that, up to March 31st, 1904, land had been allotted to some 130 Europeans. When Sir Donald Stewart was appointed Commissioner in 1905, in succession to Sir Charles Eliot, one of his first actions was to appoint a Land Commission to report upon land administration and legislation, and to suggest improvements where necessary. This consisted of officials of the Judicial branch, Judge Hamilton (later Sir Robert Hamilton, Kt.), and Mr. J. W. Barth (later Sir Jacob Barth, K.B.E.), two settlers, Lord Delamere and Mr. Frank Watkins (Senior), with the senior Judge of the High Court (Judge Cator) as Chairman. Early in the proceedings Judge Cator had to vacate the position as he was promoted to a judgeship of the High Court at Zanzibar. Lord Delamere then became Chairman of the Commission.
The report of this body may be regarded as the opening of the second phase of land agitation in the Protectorate. This will be described in Chapter V, together with the interesting sequel that led up to the forceful demand, which neither the Kenya nor the Home Government has yet refused categorically, that the title of all leasehold European estates may be converted to freehold, and that every landholder shall have the right to use his land for farming or, at his sole choice, for speculative subdivision for building purposes.
Summarized briefly, the story, up to the point that has been reached, is a record of action by the Foreign Office in taking possession of the whole of the land in the interior of what is now Kenya Colony. This operation, it is true, only succeeded because the natives of the country were too uneducated to know what was going on, but that is precisely the condition that has provided openings for so many of the exploits of the Foreign Office which have been regarded as brilliant. It next proceeded create in Africa a class of landed proprietors. Anybody might belong to this class, provided that he or she was not an African. Differences next developed rapidly with various cliques of proprietors. Upon their becoming a trifle turbulent, the Foreign Office (which knows all the artifices) handed the cliques country and all its problems over to the Colonial Office. It was in 1905, and on April 1st, that this took place. The sequel ought to contain much of human interest.
It does.