Kipsoi Arap Chemorore versus the Crown

For the British, justice was the epitome of a civilized society, and they were respectful of the rule of law in handling crimes and conflicts over land through formal court proceedings. In this case, the government found itself contending with a serious political problem, having removed people from their own land. The government had two options: either to use force, or to ‘go very slowly,’ considering that local opinion in the entire region had been muddied by this issue. The Kipsigis decided to show no cooperation with the government authorities, until the matter was ‘settled to [their] satisfaction’ in court.’'

Before we analyze the court proceedings, it might be useful to know something about the accused man himself. He was a prominent member of the Kipsigis community and was viewed by the colonial officials as being progressive and an entrepreneur. Having lived on European farms and worked for Europeans, he had developed his own ideas about the injustices the African communities were suffering under colonial rule. Consequently, he believed that if the respected rule of the law was not arbitrary but would deliver justice to those whose rights were violated, he was prepared to appeal to the High Court against his conviction in the provincial court. His case raised an important legal question. According to the charge sheet, the accused—together with others not before the court—had unlawfully refused to vacate land ‘in accordance with the Native Authorities Ordinance.’ The ordinance under which he was accused states that ‘Any African who without lawful excuse neglects to obey an order under this section shall be guilty of the offence’ as charged.38

In his extensive ruling, the Crown Court judge re-interpreted what the ordinance implied. For purposes of brevity, we outline the essential parts of the rulings. An important point raised was whether by failing to obey the order of the Provincial Commissioner (PC), Kipsoi Arap Chemorore had committed a criminal offence. The accused and 60 others were claimed to have illegally occupied Crown land when they had been ordered to remove themselves to the African reserve.59 After hearing both sides, the sitting judge found that the accused had a ‘lawful excuse’ for his action. A ques- tion was whether the accused had any legal claims to the said land. Indeed, he had, and was able to produce a legal document in the form of receipts showing that he had paid the required fees in order to occupy the land. In summing up his ruling, the judge stated:

when the question as to the legal rights of somebody to land arises, then the proper authority for determining that dispute ... is the Supreme Court’ [and not the PC court], [T]he question whether the accused ought to leave the land or not, was a question which he was entitled to hear a decision by a court, and I consider that it would be a grave injustice to force upon him the decision either to leave the land or to risk becoming an offender by not doing so. For these reasons, I consider the accused [to have had] a lawful excuse for not obeying the order of the PC.40

By resolving this land case, the court had, in effect, dismissed the administra- tive orders for removing the Kipsigis from the land. The administration therefore had to work out ways in which the land could be divided among the 60 families which had previously been removed by force. The Kipsigis families were allocated a parcel of land each for crop cultivation and grazing livestock, but subject to stringent rules in running the land allocation scheme. According to the Crown Land Ordinance, the residents in these schemes were given specific instructions, including demarcating their allotted pieces by live tree hedges, and avoiding any attempt to subdivide the land allocated to each family. The schemes were inspected to ensure that the farmers had fulfilled all these conditions, including building soil conservation infrastructure. By 1954, certain families had been identified by the officials as model farmers and were given government loans to develop their lands.41

By 1955, the main activity of the families was to clear large areas of the forest for planting crops and livestock grazing.42 The Kipsigis hired tractors to plough their land—this was noted as ‘progress,’ for which they ‘excelled’ among other African farmers. By the end of 1955, 22 of the 60 farmers had paid their land loans.4’ Yet, even by 1956, they were still prevented from erecting permanent dwellings on their land holdings.44 Similar to the Kimalot land case, the agriculture and soil conservation schemes were con- cerned with ordinances for compliance with project implementation. This is our second case study.

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