Publicly, the issue was gaining political momentum. This was probably the reason why the Colonial Secretary had to pitch for the government posh tion once again. This time, he supported the new proposal (despite rejecting it outright earlier), whilst at the same time taking a firm position. It is worthwhile looking at part of his argument:
I am directed to say that the highlands board [i.e., the European Board] has given its approval to the following modifications of the terms of exchanges of land: (a) that the area to be excised from the Kimulot block and added to the Native Land Unit be increased from 5,000 to 6,000 acres, (b) that [the decision considered] ‘as settlement of all outstanding Kipsigis claims’ in regard to the forest glades and Trans-Mara areas.2’
The Colonial Secretary stressed that there was to be no ‘bargaining on individual points.,2b The Provincial Commissioner of the Nyanza province,27 still attempting to convince the secretariat about the seriousness the Kipsigis attached to their land, cited at length the contents of a letter written to him by the LNC on behalf of the complainants. The letter in part stated as follows:
We thank you for your communication, but we are disappointed. Respectively we point out that we have never suggested exchanging our land— We wish to retain that land.... Our plea to Government has been the land at Kimalot should be returned to us, as we claim it to be part of our tribal land. We were driven from it some years ago and our houses were burnt.... We did not think that Government would give with one hand and take away with the other.28
In response to the letter, the provincial administration made three important observations to the higher authorities. First, the matter was solvable if an unbiased decision was to be made. Second, he re-emphasized the point about the loyalty of the community in question; and, third, this being a model agricultural community, they needed to be helped by the government to stay on course.29 Consequently, the agricultural officials requested the government to re-examine the land questions as the matter was disrupting agrarian programs in the Kipsigis’ areas.’0
Unfortunately, those involved in discussions of the Kimalot land complaint (apart from the Kipsigis) continued to shift their position. The Provincial Commissioner’s position was a case in point. He gave an ultimatum to the LNC to ‘take it or leave it,’ even warning them that if they entrenched their position, the government offer would be withdrawn. Accordingly, he wished to make it ‘absolutely clear to the [LNC] that the decision was final and irrevocable. They had a choice, either to accept the government proposal “in toto”,’ or to reject it. Rejection would imply that the land would return to becoming Crown land. It would also mean that the Kipsigis would lose their other land complaints. If, however, they accepted the proposal, the gov- ernment would increase their allocation from 6,500 to 7,500 acres. For some of the councilors on the LNC, the implications were grotesque. Agreement would seriously prejudice their case and the future of the tribe. Either way, the Kipsigis would be forced to abandon all outstanding land claims.31
What sustained their case, however, was ongoing indecision by the authorities—perhaps for lack of agreement on reclassification of the area that would shift some parts of the African land to the European highlands, while those parts that were to be exchanged would be shifted from the European highlands to the African reserves. For the government, it did not make sense for them to be preoccupied with solving complaints over land—sometimes bargaining and at other times having their offers rejected.52 To pursue com- pliance, the government introduced the native land ordinances that specified actions to be taken if the people were not compliant.
The Native Lands Trust Ordinance
Following pressure from the government, the LNC agreed to the exchange of land, for which they were finally allocated 7,250 acres of the Kimalot block and a 10,000 ha ranch purchased by the government for use by the Kipsigis. It took a lot of convincing by provincial officials for the native council to accept this deal.55 Another stringent condition was that the Kipsigis should clear the bush and undertake soil conservation measures. They were required to take a tribal oath to bind them to the agreement, pledging that they would not cut down trees on the steep slopes and their goats would be allowed into the forested areas only with the permission of the officials. Anyone who violated these rules would be expelled without the option to return. ’4
The terms were that the Kipsigis should immediately vacate the remaining land that was to be transferred to the European tea estates. Nevertheless, due to a lack of unanimity among the Kipsigis, the government removed them forcefully.5’ The Kipsigis took legal action to address their expulsion. Mr A. Ohanga, who served as a lawyer for the LNC, represented the group. His letter to the Provincial Commissioner of the Nyanza Province raised several interesting points. We cite excerpts from the document, below:
I have in my office ... a representative of the 86 Kipsigis families, 22 of which have been served with a removal order under the Native Authority Ordinance Section 13 (1).... The order which requires these people to remove themselves from the area in question ... [are] the Kimalot people, most of whom have occupied this area for no less than five years [this is a minimum legal limit for occupancy of land], have found it a bit difficult to cope with an order so drastic in three days’ notice....
The [order] ... was bitterly opposed by every Kipsigis in the district____
It is true that the LNC members were drawn into accepting the [order]. But it is equally true that their action did not reflect the true opinion of the Kipsigis indigenous elders, whose opposition is so strong.36
Among the people removed by force and then arrested was one Kipsoi Arap Chemorore. He was convicted on two counts—first, he disobeyed the PC’s orders under the Native Lands Trust Ordinance and, second, he masterminded the Kipsigis’ land agitation. We now examine the court pro- ceedings in this case more closely.