THE COLONIAL LEGAL ORDER IN KENYA

Legal pluralism has been called “a fixture of the colonial experience … characterizing at the present day the larger part of all of the world's national legal systems”.Footnote ⁶ So it has been with Kenya. In 1906 the East African Protectorate identified different sets of laws governing three different social groups.Footnote ⁷ Law for Africans (“natives”) was “native law and custom provided it is not repugnant to justice or morality … and such Acts and Ordinances as are specifically applied to them”.Footnote ⁸ For “non-natives” (European settlers and Indians) the law was “applied Indian Acts, Ordinances and Regulations, and where these are inapplicable the Common and Statute law of England existing at the time of the passing of the Order-in-Council, 1897”.Footnote ⁹ Thirdly “Mahomedan law, or the Sheriah as expounded by the Shafei school of commentators” applied to “Mahomedan natives in the dominions of the Sultan of Zanzibar”. While there was some attempt to codify law of the different African tribal groups,Footnote ¹⁰ and Islamic law operated largely independently, the dominant and fastest growing body of colonial law was the second, as befitted the political dominance of the “non-natives”.

In the two decades after 1920 the new Kenyan colony was passing ordinances at a rate of nearly one a week: a substantial output, even allowing that many of these were minor amendments.Footnote ¹¹ They were made by a legislative council of colonial officials and elected white settler (with a few Indian) representatives. African interests were supposedly safeguarded by a native commissioner (an appointed British colonial official), but Africans had no direct representation as they were considered “not fit to govern”. This arrangement purported to be representative government, but effectively excluded Africans, who during the colonial period comprised over 95 per cent of the population.Footnote ¹²

The so-called Devonshire Declaration of 1923 (Devonshire Declaration) asserted that African interests should be paramount,Footnote ¹³ but in reality power was in inverse proportion to the size of the three main racial groups. White settlers were the smallest but most powerful group, and laws profoundly affecting the African population were made without their consent or even knowledge. The Colonial Office in London was occasionally pressed by the Anti-Slavery and Aboriginal Protection Society and the Labour Party over its policy towards Africans. However, parliamentary questions were less interested in the Africans than in seeking assurances that the constitution of Kenya would retain an official majority (ie of British colonial officials rather than settler interests) in the Legislative Council “until the Natives are fit to bear their part in the government of the colony”.Footnote ¹⁴ When challenged in 1926 whether the Feetham Commission on local government was considering giving votes to “natives and Indians in municipal government affairs”, a bemused Colonial Secretary Ormsby-Gore responded: “I have no idea whether the question is coming up at all.”Footnote ¹⁵

The main authors of Kenya's colonial laws were a small cadre of predominantly Oxbridge-educated law officers, for whom the colonies offered the chance of early advancement to such positions as attorney-general and chief justice.Footnote ¹⁶ Law-making was also informed by various official commissions and reports of expert consultants, drawn from the same cadre of lawyers and other professionals. Indeed an under-secretary at the Colonial Office in London expressed himself “a little distressed over Kenya's increasing inability to move in any direction without the assistance of an outside expert”,Footnote ¹⁷ and one historian remarked upon the “campaign of commissions” that visited Kenya between the two world wars.Footnote ¹⁸ The Feetham Commission on local government is one such that is discussed below.

The new laws often borrowed from legislation in other British colonies and increasingly sought consistency with it. While British statute law on local government, public health, housing and town planning was influential, Kenya often looked to South Africa, especially the Cape Colony, for experience in managing Africans, and many colonial officials in Kenya had personal connections with South Africa.Footnote ¹⁹ The first major land grant to white settlers was made to a syndicate that was “a virtual who's who of prominent financiers and magnates”.Footnote ²⁰

Laws from the early days of the Kenya colony regulated African labour, movement and relations to towns. In particular there were three groups of ordinances relating to registration, “master and servant” and vagrancy. First, the Native Passes Regulations 1900 and Ordinance 1903 required Africans to have a pass to leave the district where they lived. During the First World War these controls were tightened. The Native Registration of Natives Ordinance 1915 required African males over the age of 15 to wear a so-called kipande card around their necks (with their finger-prints and employment history recorded) when leaving their reserves for the “settled” (ie by whites) areas; a 1922 revision required them to carry it when in the township (but not when in the reserve).Footnote ²¹ The kipande system (much hated by Africans) enabled employers and officials to control their African labour and enforce labour contracts. While the South African pass laws under apartheid are better known, it has been claimed that “[t]he scope and intensity of controls and pressures placed upon the African population in Kenya by the colonial state to provide labour for settler estates were far greater than those found in any other British colony in Africa.”Footnote ²²

A second tool for labour control was the 1906 Master and Servants Ordinance, pushed through by white settlers in need of “native” labour, and later amended. Originating in a large corpus of medieval and early modern English legislation, these laws were adopted for settler colonies in Africa, the Caribbean and Australia as a common system for regulating labour, enforcing the rights of the master but offering little protection to the servant. While in Britain the 1875 Employers and Workmen Act removed the more punitive sanctions and recognized the rights of workers to collective representation, colonial laws preferred the earlier form.Footnote ²³ The East African Protectorate courts rather ineffectually sought to mitigate the more brutal treatment of labour in Kenya: the High Court in far-away Mombasa urged local magistrates that “more discretion be used in awarding the punishment of flogging”, and that they “must not regard floggings as an every day occurrence to be freely administered but as a serious and exceptional form of punishment”.Footnote ²⁴ In Kenya a 1919 amendment created a labour inspectorate within the Department of Native Affairs, empowered to inspect and make rules governing workplace practices, but the system was weak and under-resourced. The ordinance also made employers responsible for housing their workers, with implications for urban areas, as discussed below.

The third group of laws were the vagrancy ordinances, six of which were passed between 1898 and 1930. Any native found outside the reserves without his kipande was treated as a vagrant who (as well as European vagrants) could be detained in prison. A government committee report on juvenile crime in 1932 recommended the “repatriation” (ie deportation to the reserves or trust lands) of any unemployed juveniles; in 1947 it was even proposed that any African unemployed for more than three months would be guilty of an offence, a measure aimed at increasing the administration's power to exclude Africans from urban areas.Footnote ²⁵

These interlocking movement controls were mainly targeted at African males of economically active age, for whom there was an insatiable demand from the colony's railways, harbours and white settlers. The 1912–13 Native Labour Commission estimated the need for 100,000 labourers. Some 400,000 Africans served during the First World War in the Carrier Corps (representing a large proportion of able-bodied men in the colony, which had a population of about 2.5 million at the time); 20,000 died, mostly of disease and overwork.Footnote ²⁶ There were huge wealth differentials between the races, as the Development Sub-Committee on Social Welfare reported in 1946: “[p]overty of a massive and grinding nature, assessed by modern standards, is at present the most outstanding feature of African society almost everywhere in the Colony.”Footnote ²⁷

This article will explore the effects of the colonial legal order upon Kenyan towns, especially the role of township laws in controlling Africans in towns, and of land tenure and local government laws in shaping the urban landscape.

THE LAW OF TOWNSHIPS AND LOCAL GOVERNMENT

As the railway and colonial administration penetrated the interior of what became Kenya, small settlements and government stations grew up, which were administered under the so-called Townships Ordinances.Footnote ²⁸ Until repealed in 1963 to make way for a new Local Government Act at the time of independence, some 30 ordinances concerning townships and municipalities were passed, starting with the Townships Ordinance of 1903. This ordinance created 11 townships, and the number grew to 77 by 1930, their boundaries set by gazette notice. Thus the boundary of the Kisumu township was defined as a 2.5 mile radius of the collector's office, and “with beacons, distances and bearings is delineated, edged red, on Land Surveys Plan No. 15135”.Footnote ²⁹ By 1906 Kisumu had a part-time town magistrate, judge and town clerk, all of whom were colonial officials operating through a township committee.

A surprisingly large part of the colonial laws of Kenya concerned local government, by which was meant local government in the “settled” or white settler areas. The largest section (or “title”) in the published laws of Kenya concerned townships, municipalities and town planning.Footnote ³⁰ The first township ordinance was only two pages long, conferring the power to make rules and levy rates, but a mass of detailed rules followed, both general and specific for individual townships. These rules appear to have been based largely upon the military cantonment rules for British India, with borrowings from British local government law and by-laws. So tangled became these rules, with multiple revisions instigated by local magistrates, that the High Court in Mombasa produced its own compilation of township regulations in 1918.Footnote ³¹ In the detail one can trace the full web of controls that the “colonial masters” imposed upon Africans.

After the First World War and the subsequent creation of League of Nations mandates over the colonies of defeated states, the trusteeship principle associated with Lord Lugard became increasingly influential in British colonial management, and was expressed in the concept of the dual mandate.Footnote ³² This meant that Africans were to be kept in reserves under their customary tribal laws except when their labour was required, while towns were to be kept separate and directly administered by the colonial power. In Kenya the physical boundaries of reserves were demarcated by ordinance, and Native Land Trusts were created for them, supervised by British officials through Native Land Boards. These were not responsible for townships, since the government reserved to itself the right to “set aside” land required for “public purposes” such as “Government camps or stations” and the “establishment of townships”.Footnote ³³ The Kisumu Township, for instance, was specifically excluded from the “Kavirondo Native Land Unit” when the boundary between them was defined in a schedule to the Native Lands Ordinance.Footnote ³⁴ Although the Devonshire Declaration asserted that African interests in Kenya were to be “paramount”, successive governors consistently favoured the settler interest. As Governor Grigg put it in 1926 (wrongly, as things turned out): “[f]ighting a long and losing rearguard action against the settler is the most short-sighted statesmanship. He will have complete power one day, and it is essential in native interests to secure his co-operation in a sound native policy by steady leadership here and now”.Footnote ³⁵ Thus “trusteeship in the early years of the century was in constant counterpoint with the parallel policies of increasing deference to the principles of white self-government”.Footnote ³⁶

The grant of a measure of self-government to Kenya was followed by a review of the local government arrangements by a three-man commission of inquiry. The governor's telegram proposing the commission to the colonial secretary in London shows a degree of confusion over what it was supposed to do:

Its terms of reference subsequently emerged as:

A background paper, prepared by Logan, the colonial official who acted as secretary to the commission, made clear that the commission should concern itself with local government in the “settled” (ie white settled) areas, while its recommendations might be introduced to native areas “at a later date when the African has proved himself fit for more power”.Footnote ³⁹ Logan's paper assumed that “the local interests of the white farmer and non-native town dweller are distinct from the local interests of the African in his Reserve”, and drew a somewhat spurious analogy with borough and rural district councils in Britain.Footnote ⁴⁰

The chairman of the commission was Sir Richard Feetham, a judge of the South African Supreme Court. Notwithstanding the recent Devonshire Declaration on the supremacy of African interests, the Colonial Office expressed itself more concerned about Indian than African sensitivities at a time of growing pressure for self-government in India itself: “I should not have looked to a South African official – even judicial – to find an acceptable solution to a problem in which Indian interests are largely concerned.”Footnote ⁴¹ Governor Grigg reassured his superiors that Feetham was “a first rate man: he is English, not South African, by birth, education (Marlborough and New College) and professional training (Inner Temple) … absolutely impartial and capable chairman”.Footnote ⁴² The Colonial Office comment was “[m]y doubt was how Indian feeling will regard the appointment”.Footnote ⁴³ Feetham travelled from Durban to Mombasa and chaired the commission for six months in 1926, mostly in Nairobi, but with a mainly recreational visit up-country, which included Kisumu. His private papers reveal his conventionally pro-settler bias: “[m]ost of the settlers here have brought English standards with them – and are intent on making nice homes, and beautiful surroundings.”Footnote ⁴⁴

Governor Grigg's hope was that the Feetham Commission might lay the foundations of “a new public spirit and sense of obligation throughout the European community”.Footnote ⁴⁵ The colonial administration was also concerned with the rising costs of local government, which were largely being met by grants-in-aid from the central administration. The Township Fees and Conservancy Ordinance 1908 allowed for the levying of various fees. However, the usual source of local government revenue (property rates based on capital or annual values) was opposed by the settlers, as was any attempt to introduce a betterment levy through town planning legislation. As Governor Grigg stated: “[t]here is a tendency throughout [the settled] areas to look to Government for services of every kind, while resenting the imposition of any taxation sufficient to cover the services which are required … It is high time that a stronger sense of financial and political responsibility were built up among all sections of the European population.”Footnote ⁴⁶

The Feetham Commission recommended a hierarchy of four types of local authority, ranging from a full elected council at the top, through a municipal board to grade A and B townships. The Local Government (Municipalities) Ordinance 1928 followed Feetham in providing for the creation of municipalities, with half of their funds provided by central government and the balance from market and other fees. Nairobi was the first to have full council status, while the port and second town of Mombasa had a municipal board. Kisumu was upgraded from a grade B to a grade A township in 1930 (allowing it to keep its own accounts) and in 1941 became the sixth municipality in Kenya;Footnote ⁴⁷ nevertheless African representation on its municipal board did not come until the 1950s.

Although Africans were by far the largest population group in the towns as well as the country, the Feetham report hardly mentioned them at all. The proposals for elected members only addressed European and “Asiatic” voters (two Europeans and one Asiatic for every 50 qualified voters), and the population figures it cited for Nairobi did not include “natives”, although they far outnumbered the other groups from the start. Townships were managed by committees or boards comprising mostly appointed officials. A white Nairobi councillor of liberal leanings in 1924 tentatively suggested that African membership of municipal boards might help avoid “the tendency to subterranean discontent”,Footnote ⁴⁸ but he was ignored. Much of the body of township and local government rules, which survived for four decades after the Feetham report, excluded and segregated Africans, as the next section will show.

The 1920s was also the decade when statutory town planning joined local government law for Kenya's “settled areas”. A Town Planning Ordinance was passed in 1919, with later revisions mainly concerned with raising new sources of revenue. The Town Planning and Development Ordinance 1931 followed legislation in England (1925), Western Australia (1928) and New Zealand (1926), and obliged municipalities to prepare planning schemes. Its provisions for betterment levies were vehemently opposed by white settlers as “inequitable, completely unsuitable to a Colony such as Kenya … unworkable in practice … We are mostly small men financially, civil servants, trade employees, professional men … The effect must be centrifugal, driving men out from the centres to remoter homes, and increasing still further the Colony's incredible burden of expenditure on roads and transport”.Footnote ⁴⁹

Town planning activity was mainly concentrated upon Nairobi, where planning schemes were prepared by successive visiting consultants. In 1913 Dr Simpson, the segregation specialist, prepared the first on Colonial Office instructions; the second, in 1926, was by Walton Jameson, an engineer from South Africa; the third, in 1948, was by Thornton-White, a British-born professor of architecture at the University of Cape Town.Footnote ⁵⁰

SEGREGATION AND CONTROL OF “NATIVES” IN TOWNSHIPS

As has been said, power in colonial Kenya was in inverse proportion to the size of the three racial groups. Europeans, the smallest but most powerful group, never comprised more than 1 per cent of the population; the second (Indians or “Asiatics”) comprised less than 5 per cent, and the remainder were African (as far as imperfect population censuses can tell us). Racial stereotypes were summarized in 1950 as:

The Africans' views were unmentioned (and perhaps unmentionable).

Africans were only welcome in towns as obedient workers. The colonial official who first laid out Kisumu township expressed a typical hostility: “[t]he towns which have sprung up in Africa are a serious disruptive force, as they too often form sanctuaries for youths who wish to avoid tribal obligations, and whose education in the slums of these centres is mainly vicious.”Footnote ⁵²

A later commentator wrote: “until forced to do so by African discontent, crime, prostitution, and the instability of a labour supply never resident long enough to be well-trained, the European and Indian populations in the towns have not regarded the African as an integral part of town life”.Footnote ⁵³

When a few years after the Feetham report a new colonial secretary (Lord Passfield, the socialist Sidney Webb) sought better treatment for Africans, the Kenyan administration defended its approach with the dual mandate argument:

The physical form of townships reflected these attitudes. They provided spacious and racially exclusive European residential areas, which were largely segregated from the Indian population by building-free zones, and even more segregated from the African population. The justification was provided by medical officers of health, for whom racial segregation was a means of preventing tropical diseases such as plague and malaria.Footnote ⁵⁵ In 1905 the Land Committee for the East Africa Protectorate recommended segregating the racial groups, and the Townships (Public Health, Segregation of Races) Rules empowered the governor to reserve areas for the following specified land uses: European residential; Asiatic residential; locations for “Asiatics of the working classes”; “native” locations; commercial areas for Europeans and/or Asiatics (but not natives); and open spaces.Footnote ⁵⁶

Kisumu was the first Kenyan township to demarcate both racial and also tribal quarters. The Kisumu Township Rules (first issued in 1904 and revised no fewer than 37 times up to 1926) divided the township into three areas. Area A (the government area of Milimani) was reserved for Europeans, living in stone-built bungalows in spacious grounds; area B (the “bazaar”, an embryonic central business district) was reserved for “Asiatics”. No “native huts” were allowed in areas A or B, and no “native” was allowed to reside there except as a lessee, registered domestic servant, registered employee or dependant. Separate European and Asian business areas developed near the railway terminus, while other immigrant groups lived in area C in separate villages reserved for each ethnic group (eg Arabs, Nubians, Ganda, those employed as tax collectors, police and sanitary workers). There were heavy penalties for any person in area C who allowed an unauthorized person “to sleep in any hut or other building”.Footnote ⁵⁷ A rule on “filthy premises” prohibited “the collection of natives or others in tents or outbuildings in the vicinity of shops or dwellinghouses who are not the actual house or shop servants in the immediate employ of the owners or occupiers of such houses or shops”.Footnote ⁵⁸ Perhaps these segregatory measures were considered to justify the official description of Kisumu in 1922 as “far and away the best laid out and kept town in Kenya”.Footnote ⁵⁹

The physical form of Kisumu as a racially segregated township resulted from its first professionally surveyed layout, together with a report on sanitary conditions in 1907 by a visiting consultant civil engineer, G Bransby Williams.Footnote ⁶⁰ At the time, it had a population of 5,000–6,000, comprising mostly Africans, with a mere 30 Europeans and 600 Indians. The Europeans lived on the high ground overlooking Lake Victoria, with the African police housed nearby in huts which Williams considered “the best in the country”.Footnote ⁶¹ The Indians in the bazaar area lived in corrugated iron shacks on small plots totally built up, with no outside space. Williams wrote: “[t]he greater number of the Indian traders of Kisumu are poor men, and the insanitary condition of the bazaar is, to some extent, the failure of the officials who were responsible for letting the land in the first instance.”Footnote ⁶² He recommended moving and replanning the bazaar “by increasing the area of the holdings, fencing them in, and removing the latrines, washing places and kitchen out of the houses into the back yards”.Footnote ⁶³ In 1921 Indians were opposing the small plots (1/12 or 1/18 acre) that the colonial authorities were offering at auction, and calling for larger half acre plots.Footnote ⁶⁴

Williams reported that that Kisumu's African workers lived in a separate “native quarter” north-east of the town (towards the present districts of Manyatta and Nyalenda). He recommended for them a layout of squares, with huts occupying each alternate square, so that: “[t]he inhabitants would subsequently migrate to the unoccupied squares when the ground on which they were living had become fouled” (ie after use as a latrine).Footnote ⁶⁵ Anticipating future growth, he suggested that 200 acres on such a layout would be adequate for 10,000 Africans. Under his scheme of alternate unoccupied squares this would have represented high densities (100 persons per acre), yet he made no mention of piped water or sewerage provision, or apparently even public latrines.

The next development in housing the urban African was the “location”, a term borrowed from South Africa. The kipande system, combined with tighter enforcement of the Vagrancy Ordinance of 1920, was intended to reduce the influx of Africans into the townships, but could not operate unless an area was defined where Africans were allowed to live, hence the “location”. Section 43 of the Municipal Corporations Ordinance 1922 empowered local authorities to lay out locations and “compel all natives residing in the municipality, except as are employed in domestic service or exempted by the Governor, to reside within such locations”. The alternative was that African workers would live outside the township boundary, which meant that: “[we] shall have on the fringe of every urban area a most undesirable school for crime … it is [the local authorities'] duty to the European residents to ensure that the location pours daily into its labours in the town a clean, healthy and contented community”.Footnote ⁶⁶

Following South African legislation, the Native Authority (Amendment) Ordinance of 1924 made the chief native commissioner responsible for regulating African housing, and created a Native Trust Fund responsible for building accommodation from beer-hall profits: the so-called “Durban system”.Footnote ⁶⁷ In Kisumu the township boundaries were extended in 1923 in order to include certain native villages and bring them under tighter public health controls; however the boundaries were tightened in 1930, excluding some of the villages, probably as a cost-saving measure and to reduce the number of Africans counted as resident within the township. The use of streets and footpaths by Africans was restricted under the township rules; a night-time curfew applied to them, and they committed an offence if they stayed outside the locations overnight or longer than a specified period without permission. Such tight controls were justified by a colonial official in these words:

Employers were required to ensure that their workers were “properly housed”, but not where “a servant is able to return to his home at the conclusion of his daily work or to obtain suitable or proper housing at or conveniently near to his place of employment”.Footnote ⁶⁹ Domestic servants were housed on the same plot as their (usually European) employers. The railway (the largest single employer of Africans) housed them in rows of single-room barracks called “landhies”, which were timber frame structures with corrugated iron roofs and cladding, usually without water or electricity. Williams described these in Kisumu: “rows of small rooms, about nine feet square, in each of which two men and two women sleep, whilst in others 30–40 people sleep in a one-roomed building which should not be made to accommodate more than half that number”.Footnote ⁷⁰

These poor housing conditions continued for half a century, employers claiming that “in boom periods building costs are too high, and that depression years are not the time to build … when I asked for examples of employers housing apart from servants quarters, my informants could not produce a single example, … such provision as Africans have made for themselves is squalid and overcrowded almost beyond belief”.Footnote ⁷¹

While the township rules required lodging houses to provide space standards of 30 square feet (and 350 cubic feet of free air space) per person, and a minimum floor space of 100 square feet for habitable rooms, and court reports include occasional prosecutions for overcrowding,Footnote ⁷² enforcement generally seems to have been lax. Improvements in African housing, and provision of family accommodation, only began after the Second World War.Footnote ⁷³

LAND TENURE LAWS AND URBAN ISSUES

What in Kenya is usually called the “land question” has been dominated by the inequalities of white settler land confiscation, as has its historiography. The co-existence of different land tenure systems under the dual mandate policy, and the implications for urban governance, are less well recognized and require some explanation.

The foundations of white settler land-holding, which made many Africans “squatters” in the land of their ancestors, lay in a succession of ordinances passed in the first two decades of the 20th century, which can be summarized briefly.Footnote ⁷⁴ The 1902 Crown Lands Ordinance provided that empty land (or any land vacated by a native) became crown land, and made it available for transfer to Europeans. By 1914 nearly five million acres of land had been so transferred, and by independence in 1963 over seven million acres. A deeds registry system was created for these land grants, followed by a Torrens-style official registry of titlesFootnote ⁷⁵ to bring land titles under tighter government control. The 1915 Crown Lands Ordinance extended the 1902 ordinance to vest in the crown “all public lands in the Protectorate … and all lands acquired by His Majesty for the public service, including all lands occupied by native tribes”, while the Government Lands Ordinance of the same year empowered the administration to grant land to individuals (white settlers) on 999 year leases, which were in effect freeholds. These ordinances were a major factor in the Mau Mau uprising and the end of colonial rule in Kenya.

While academic attention has understandably focussed on white settler farmland, the land tenure laws also had a major impact upon urban growth and governance. The land occupied by the townships was state land under government leasehold control. After the land had been surveyed, that not required for government use was subdivided into plots and usually auctioned for residential or business use by individuals and companies (both British and Indian, but not African). Outside the township boundaries were the reserves or trust lands where most of the African urban population was required (indeed usually preferred) to live, and the convenient ideology of the dual mandate allowed the township to evade responsibility. Successive annual reports on Kisumu municipality refer to the situation:

As Parker put it in 1950: “[w]henever peripheral development of this kind takes place, some measure of control is ultimately necessary, because lawlessness or drunkenness may prevail there, or the lack of services may produce disease which spreads to the town, or because certain township services (such as malaria prevention) need to be extended into surrounding areas if they are to be effective.”Footnote ⁷⁹

A major change came when Africans were allowed individual freehold tenure in trust lands. The Swynnerton report (part of the colonial response to the Mau Mau uprising) recommended that an African landed class be created, by facilitating individual African ownership in the trust lands;Footnote ⁸⁰ following the East African Commission report of 1955, this resulted in an “ambitious programme of social engineering, aimed at the total extinction of customary land law”.Footnote ⁸¹ It was brought into law by the Native Lands Registration Ordinance of 1959, replaced just before independence by the Registered Lands Act 1963. Procedures were laid down in the Land Adjudication Act 1968 for the “ascertainment and recording of rights and interests in Trust land”, which comprised the systematic adjudication of boundaries, consolidation of holdings and registration of individual ownership. It was intended that the new land registration system would eventually replace the older laws designed for white settlers, but they have still not been repealed half a century later, a situation which has facilitated corrupt land allocations.Footnote ⁸²

The enlargement of municipal boundaries added trust lands and newly granted freeholds to the former leasehold areas of the former townships, with major implications for urban governance, as the Kisumu case shows. Its municipal boundary was extended in 1972, enlarging the official urban area 20 times, from the 15 square kilometres of the former township (the “Old Town”) to 297 square kilometres (and a further 120 square kilometres of Lake Victoria's waters). In 1962 the Old Town had a resident population of only 23,000, but by 1990 the population of the post-1972 expanded urban area was 190,000; this more than doubled to 396,000 by 2010.Footnote ⁸³ The municipality compulsorily acquired land north of the town under the Land Acquisition Act 1968, intended to be a land bank for future planned development, but much was corruptly re-allocated to land speculators, leaving the council with little for public use.

The co-existence of leasehold with freehold and trust land caused many problems. Registered title land and freehold land had separate map registers, reflecting their different origins. The boundaries of titled land (council-acquired land and other estates) were recorded in the Nairobi Lands Office, while freehold land was recorded on registry index maps in the local Lands Office. Furthermore the land certificates issued under the Land Adjudication Act of 1968 defined plots by general boundaries, while leaseholds and registered titles were defined by fixed boundaries, creating opportunities for corruption. In collusion with land surveyors, landowners could apply for official boundary corrections, enlarging their land into the acquired titled land which appears blank on the registry index map.Footnote ⁸⁴ Thus a land parcel could be registered under two different statutes, both legal but overlapping on the same space, and recorded in separate land registries.

The Old Town continues to be closely regulated, 40 years after the expansion of municipal boundaries, and is seen as “detached” from the majority of the population, with an “inherent perception on the traditional role of the local authority” inherited from the colonial era.Footnote ⁸⁵ Meanwhile two thirds of the people live in peri-urban informal settlements outside the Old Town, on former trust land converted to individual registered rights. Densities in these areas can be as high as 150 households per hectare (compared with 15 in the high-income areas of the Old Town), and they are largely unplanned and unregulated, with mixed land uses, poor infrastructure and utilities, and a propensity to flooding and diseases of overcrowding. They are the so-called “septic fringe”.Footnote ⁸⁶