Case 1: the Kimalot land case, 1920–1956
The conflict concerns the Kimalot area in the Kericho District, which had been inhabited by the Kipsigis (Figure 7.1). The Kipsigis’ land case was complicated by their proximity to the European tea estates. The Kipsigis resisted the transfer of customary land under lease to the European tea plantations, which had been conducted by government officials without consulting the Kipsigis. This was also the view of some of the provincial administrators who supported the Kipsigis in the conflict. At the time, in 1925, the District Commissioner (DC) Mr Hemsted wrote a letter to the Provincial Commissioner, stating:
I have always held opinion ... that the [Kipsigis] have not been fairly treated as regards land, with the result that many thousands of them have been forced to go onto [the European farms] to find grazing for their cattle. Many of the farms should never have been alienated, but this cannot be remedied now.9
A local lawyer launched a complaint on behalf of the Kipsigis in 1927. According to the letter received by the Provincial Commissioner, the claim was that the government had destroyed 1,641 homesteads. Consequently, ‘All helpless men, women and children and all the new born babies ... died of [unpredictable] heavy storm of rain and cold’ after their houses had been burnt down.10 The administrative officials dismissed the complaint as being factually incorrect, stating that it was ‘wilfully inaccurate and misleading.’ The new District Commissioner reduced the case to African political propaganda but did not dispute the fact that Kimalot belonged to the Kipsigis.11
Whereas the ordinance of the 1920s had placed the Kimalot area within the African reserve, by which the Kipsigis were guaranteed land security, the Morris Carter Land Commission of 1932 placed the same land under the ‘Crown land’ category, even though it was administratively under the LNC. The Chief Colonial Secretary—knowing that this was a controversial decision—preferred not to raise the matter anew.12
The status of the contested leasehold land
The Provincial Commissioner (PC) of Nyanza was willing to give his opinion on what had actually transpired. He stated:
In their interest I advance the suggestion that in 1920 the Kipsigis were so unsophisticated that they could have taken practically no part in the agreement to lease that land ... and I consider the government cannot avoid responsibility for that lease. If my view is accepted, I endorse [return of the land to the Kipsigis] for generosity in this settlement.
Under the lease agreement, the Kipsigis had to relinquish use of the 7,000 acres of Kimalot land for some 969 years—the arrangement that would have no ‘practical value’ for coming generations.13 Promoting the same view as DC Hemsted, DC Kericho (whose administration included Kimalot) made another proposal in 1947. In his opinion, the area had been an integral part of the Kipsigis’ tribal land to which they held ancestral rights. In his view, the return of the land to the Kipsigis could play an important public relations role by allaying their fears over the introduction of deveb opment programs.14 Further, the land’s suitability was limited, suggesting that it would be of little value to European settlers who might want to use it for tea plantations or dairy ranches.15
The problem was of an administrative and political nature, as opposed to one of land suitability. Supporters of both sides attempted to exploit the lacunae in the land law provisions. In order to separate areas that were contested from those that were not, an agricultural official in the Kericho District presented a map (Figure 7.2) showing the subdivisions of the contested land. The land parcels marked A, В and C had varied topography and covered a total area of 12,000 acres. According to the agricultural official, section C would be shifted to the African reserve, while section В would revert to Crown land. The official was however doubtful if transferring section A to the Africans was a fair deal. In the view of the agricultural official, the land parcel was part of a forestland, heavily wooded and received high rainfall. The area was remote and lacked an access road to market the produce. Additionally, clearing the thick forest would be a huge task for which the peasants lacked financial resources.16
The Chief Secretary was however insistent that the European Board’s decision on the contested land was final, subject to the following conditions: ‘(a) that the exchange [of land] should be regarded as a settlement of all outstanding claims [by the Kipsigis]; (b) that no settlement would be allowed until the area was free of [tsetse] fly.’17 The Kipsigis were determined to resist the land transfer. Generally, the matter had worried the agricultural department which blamed the land wrangles for the delays in land improvements.18
In his 1948, communication, the DC of Kericho, while being sympathetic to the tribal community, made an additional proposal on how the
Figure 7.2 Sketch of Kimalot area in conflict with the European Tea estates.
exchange of land should be conducted. In his opinion, the Kimalot problem was extremely complex. First, the area was historically part of the customary land of the Kipsigis, over which they had hereditary land rights. Second, if the Kipsigis were agreeable about swapping the land, they should not lose any of the benefits of their ancestral land. Rather, they should receive an equal piece of land from the unalienated Crown land, suggesting that offering them less would be a discriminatory deal. A fair deal would be if the LNC in Kimalot agreed to be compensated for the total of 12,000 acres.19
However, the Provincial Commissioner of Nyanza did not view swap- ping of the land as being impartial. Symbolically, he compared the propos- als of land swapping by European settlers and the Kipsigis to ‘attempting to compensate a Welsh farmer for land lost with a piece of land in England or Scotland.’ Regardless of the different values of the land in these principalities, the message was that the deal would be unfair for one of the parties. Accordingly, in his view, the proposal should take note of the suggestion made by the District Commissioner of Kericho, mentioned above.20 Nevertheless, according to a Member of the Agriculture and Natural Resources office, certain facts about the size of the land in the various land parcels were inaccurate. The total contested land was less than the figures given above and the parcels were of different sizes; therefore swapping would not address the problem of land complaints.21
Still, the office of the Colonial Secretary was firm, arguing that the Kipsigis had been given a final solution to their complaints through a lease which would not be relinquished for purposes of ‘reversionary interest’ for land for which they had been fully compensated. The secretary emphasized:
I am to make it clear that the 5,000 acres was decided upon as a generous compensation for the loss of a reversionary right to 6,500 acres at the end of 969 years and the government cannot under any circumstance consider the allocation to the whole 12,000 acres of land.
In the event, the Kipsigis rejected the offer, so the final decision was to return the whole extent of the land to Crown land.22 This was a powerful warning to the Kipsigis.
The firm response from the Colonial Secretary did not discourage the DC Kericho under whose responsibility the Kimalot land fell, in again making a new proposal. His argument was that the Kipsigis were never party to the land lease. Indeed, in his opinion, much of the land dealings remained a mystery, considering that he had found no correspondence on how the land lease was made and who had signed it. The LNC, that was legally the body responsible on behalf of the peasants, was not even in existence when the lease had been finalized. In subsequent years, the LNC supported the Kipsigis.25
The DC’s new plea to the government was premised on his faith that he could persuade the members of the LNC to change their minds on some of the land questions, while appreciating that the Kipsigis’ claims were genuine. In his opinion, a better way to approach the problem was to comprehensively solve other outstanding land questions that the Kipsigis had, such as in the areas which bordered the Trans-Mara District (see case study 3). The commissioner reminded the government that, as a community, the Kipsigis were among the most loyal of the African people and their contributions to the war efforts were well known. Besides, they were recognized for their extraordinary skills in land conservation. Considering these factors, the DC pleaded that the government should be more sympathetic to their case.24 Even so, the administrative dialogue which supported the Kipsigis on the one hand and the government on the other, still did not involve the community directly.