Land Tenure under Kenya law refers to the manner in
which individuals or groups of people within community or society enjoy
rights of access to land at a broader level, this would include the
conditions under which such land is enjoyed. Of course at a broader
level this would also include the conditions under which such land is
held or access to it, enjoyed. Many examples of that can be identified.
For instance, land may be held from some superior authority. Depending
on the setting, land may be held from some superior authority, such as
the Crown, as is the case under the English system. Or for the Kabaka
under the Baganda system in feudal Baganda. Or in some unspecific
political authority within the tribe, may be from elders within the
tribe or clan or through a lineage or in some case through family
arrangement, which authorizes that particular question.
Communal Tenure
In most societies in pre-colonial Kenya the commonest mode of land
holding was indeed thro non specific authority within the clan or
lineage or families and towards that end, we may identify several types
of land tenure so that one may talk of such tenure taking the form of
the broader communal tenure whereby members of the group are deemed to
have equal rights of access to the land, that is considered to belong to
that community.
Family Tenure
At a much lower level it may take the level of family tenure which
serves as the basis of granting access to land so that qualification as a
family member will determine whether or not such rights of access would
be forthcoming to an individual. We may consider such holdings under
feudal tenure which is essentially a political arrangement of sorts
whereby some political authority was deemed to control land in total
discretion determining who should be permitted to use what portions of
land and under what conditions and in exchange for what services which
could be in kind or could take the form of doing manual labour or
rendering vital services such as serving in the army or defending the
frontiers or working in the palace or it could even take the form of
giving payment in kind such as a certain percentage of all produce
harvested being devoted towards payment for being allowed to use certain
portions of land.
Individual Tenure
A person here would hold land on more or less a permanent basis free
from any adverse claims from others and absolutely answerable to no one
in the enjoyment of such property. This again is a new development in
terms of their developments. It is perhaps the last of the forms of
land tenure to emerge and this is what almost all jurisdictions are fast
learning to embrace due to its perceived advantages. Individual tenure
is with no encumbrances or claims emanating from other quarters.
Sometimes it is hard to draw a line between the categories of land
tenure but broadly speaking, one can come out with those categories.
For instance in areas coming under individual tenure that were
previously in another tenure you may have a problem defining the
category.