Land seized by British colonists cut a swathe through Kenya’s modern-day provinces of Rift Valley, Nyanza, Western, and Central, creating an area that became colloquially known as the ‘White Highlands.’ In total, British and other European settlers took 20 percent of Kenya’s land, most of it prime agricultural spots. Independence in 1963 some of this was handed over, not to the people from whom it had been taken, but to the new government and government officials, using the colonial laws that the British had themselves drafted. These laws made no provision for the collective land rights of communities.7 The introduction of the concept of private individual property, without the recognition of collective land rights, upset the traditional arrangements of many indigenous groups, many of which based their land occupation and use on traditional collective practices, such as pastoralism. Colonial laws also treated “natives” as incapable of holding direct land title, instead having land held “on trust” for them by governmental authorities.
After independence the new government under Jomo Kenyatta did not recognize customary land use in law or practice but instead sold the land it acquired from British settlers under the principle of ‘willing seller, willing buyer.’ But much of the land ended up in the hands of members of Kenyatta’s Kikuyu ethnic group rather than with the communities from which it had been taken. Kenyatta also used the land for patronage purposes and to build alliances, a pattern that continued and increased under his successor President Daniel arap Moi. Colonial “trust” land remained in place with respect to the historic land of certain groups, including many pastoralist groups who were still deemed, in effect, incapable of holding direct land title.
The National Rainbow Coalition (NaRC) that brought President Kibaki to power in 2002 was supposed to resolve the land issue once and for all. This was one of NaRC’s major campaign promises. To that end, Kibaki launched the Ndung’u Commission to investigate patterns of corruption and unfair allocation of land and to propose remedies. The final report was deemed too controversial and the Kibaki government never implemented the recommendations. The report notes the importance of land in Kenya, stating, “land retains a focal point in Kenya's history. It was the basis upon which the struggle for independence was waged. It has traditionally dictated the pulse of our nationhood. It continues to command a pivotal position in the country's social, economic, political and legal relations.”
The American who wrote the most hated policy paper in Kenya