The case of Kisumu city, Kenya - webapps.itc.utwente.nlsuccessive local authorities have shown an apparent weakness in controlling or guiding urban land use development; Property owners

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Enschede, The Netherlands

CCuussttoommaarryy tteennuurree:: ‘‘ooppppoorrttuunniittyy’’ oorr ‘‘oobbssttaaccllee’’ ttoo uurrbbaann llaanndd ddeevveellooppmmeenntt??

The case of Kisumu city, Kenya

EEddwwiinn WWaammuukkaayyaa OOkkoonnyyoo March, 2008

CCuussttoommaarryy tteennuurree:: ‘‘ooppppoorrttuunniittyy’’ oorr ‘‘oobbssttaaccllee’’ ttoo uurrbbaann llaanndd ddeevveellooppmmeenntt??

The case of Kisumu city, Kenya

By

EEddwwiinn WWaammuukkaayyaa OOkkoonnyyoo

Thesis submitted to the International Institute for Geo-information Science and Earth Observation in partial fulfilment of requirements for award of the degree of

Master of Science in Urban Planning and Management

Thesis Assessment Board:

Chairman: Prof. Ir. P. van der Molen External Examiner: Prof. Dr. E. Schmidt-Kallert First Supervisor: Dr. R. V. Sliuzas Second Supervisor: Drs. E. J. M. Dopheide

IInntteerrnnaattiioonnaall IInnssttiittuuttee ffoorr GGeeoo--IInnffoorrmmaattiioonn SScciieennccee aanndd EEaarrtthh OObbsseerrvvaattiioonn Enschede, The Netherlands

Disclaimer

This document describes work undertaken as part of a programme of study at the International Institute for Geo-information Science and Earth Observation. All views and opinions expressed therein remain the sole responsibility of the author, and do

not necessarily represent those of the institute.

Life is about not knowing; having to change, taking the moment and making the best of it, without knowing what’s going to happen next.

Delicious ambiguity.

Gilda Radner (1946 – 1989)

Dedicated to my parents,

Who taught me to always look beyond the horizon.

i

Abstract

In Kisumu, the expansion of urban areas into agricultural hinterlands; due to demographic pressures is

forcing customary land tenure practices which have existed for centuries in these areas to adapt and adjust

to new situations. Despite the abundance of land in the expanding urban areas, its availability is critically

constrained due to protracted and complex land tenure arrangements. In the peri-urban areas, for instance,

successive local authorities have shown an apparent weakness in controlling or guiding urban land use

development; Property owners can do as they wish with their lands, subject to family and communal

obligations that may apply depending on the prevailing land tenure. Municipal officials have found it

nearly impossible to achieve harmony, delight and efficiency in the planning process when ownership of

large parcels of land adjacent to the city is held under customary tenure.

Based on a case study survey of three settlements at varying stages of development (incipient, intermediate

and consolidated) in peri-urban Kisumu, this study sought to investigate how the customary tenure system

in peri-urban Kisumu adapts and adjusts amidst rapid urbanization; as well as its opportunities and

challenges to the spatial planning of the peri-urban zone.

The study findings indicate a progressive shift from communal to individual landownership patterns and

related rights to land in the case study areas due to land market pressures; although chiefs and village

elders still continued to exercise their mediating roles. The findings also revealed considerable weaknesses

in the capacity of the state to intervene and foster planned land development in peri-urban areas. Indeed,

given the bureaucratic hurdles that have to be overcome at each stage of the land development process, and

the likelihood that considerable time will pass before development approvals are finalised; it is not

surprising that property owners in the case study areas are developing their land outside official planning

norms.

On a positive note, the role of traditional authorities in urban land management was especially strong in the

incipient phase of settlement development. However, the consolidation of settlements due to demographic

pressures and overheated land markets appears to curtail the efforts of traditional authorities’ in wider land

management aspects such as encouraging community mobilization and local participation in community

development projects.

Given the strengths and weaknesses inherent in both public and customary land management approaches,

the study concludes that there is a need to integrate both customary and public authority’s efforts towards

orderly urban development. The incipient phase of settlement development serves as a possible entry point

to such initiatives before settlement densities build up and the ensuing consequences - the lack of apparent

planning and sense of order - are often too ghastly to contemplate.

Keywords: customary land tenure; urbanization; land development

ii

Acknowledgements

Many individuals and organisations immensely contributed; directly and indirectly, in various aspects of

this study. Special thanks go to NUFFIC and ITC for the financial support extended to me. My utmost

gratitude goes to Dr. Richard V. Sliuzas and Drs. Emile J. M. Dopheide; my supervisors. They not only

provided their support and guidance but also their opinions, comments and suggestions that helped a great

deal in shaping the focus of this study as well as the challenging research that lies behind it.

I am greatly indebted to the staff in the Urban and Regional Planning and Geo-Information Management

Department for introducing me to the dynamic field of urban planning and management.

I also appreciate the time and effort of the following individuals: Mr. Charles Angira and Mr. Stephen Sule

(Town planning department – Municipal council of Kisumu); Mr. George Waggah, Ms. Leah Onyango and

Mr. Kola (Maseno University); Ms. Olando, Ms. Njenga, Mr. Ogutu, Mr. Hussein and Mr. Kagema

(Ministry of Lands and Settlements); Mr. Sunday Ericson and Ms. Irene Karanja (Pamoja Trust). Their

cooperation was of immense use to the findings, conclusion and recommendations of this study. I am

equally grateful to the residents and community leaders of Manyatta ‘A’, Nyalenda ‘B’ and Nyamasaria

settlements; who volunteered information and participated in this research with great interest and

enthusiasm.

I acknowledge the academic and moral support from Mr. Emmanuel Midheme; who gave insightful

comments and reviewed my work on very short notice. He has been a great friend and mentor.

Mr. Renson K. Mbwagwa and Mr. Musyimi Mbathi deserve special mention for their role in seeing me

started on this long journey. My studies in ITC have brought me great satisfaction in my professional life.

But also these years scared me since I did not want to disappoint the persons who believed in me.

Thanks to friends and colleagues in the UPM programme (2006 – 2008), who inspired my final effort

despite the enormous work pressures we were facing together. Let me also say ‘Asante’ to the Kenyan

friends and colleagues in ITC and Enschede, whose company served to re-create home away from home.

This list is by no means exhaustive; but nonetheless, I am grateful to everyone else who helped out in one

way or another. To them, I am most appreciative.

Finally, but most importantly, special word of thanks go to: my parents (Mr. & Mrs. Okonyo) and family,

who have always supported, encouraged and believed in me in all my endeavours and Ms. Bilha

Khaminwa, whose constant encouragement helped to mould my resolve to work much harder.

The highest praise is God’s for making this and all other things possible in life. Edwin Wamukaya Enschede, March 2008

iii

Table of contents

1. Introduction .................................................................................................................................................. 1 1.1. Urbanization and urban growth ................................................................................................ 1 1.2. Why the focus on cities, towns and urban centres? .................................................................. 1 1.3. Guided land use development in the peripheries: the elusive challenge? ................................ 2 1.4. Defining the research problem ................................................................................................. 3 1.5. Objectives of the research ........................................................................................................ 4 1.6. Research questions ................................................................................................................... 4 1.7. Significance of the study .......................................................................................................... 5 1.8. Definition of terms ................................................................................................................... 5 1.9. Limitations of the study ............................................................................................................ 6 1.10. Outline of the thesis .............................................................................................................. 6

2. Land use and tenure systems in developing countries ............................................................................... 8 2.1. Defining land tenure and property rights ................................................................................. 8 2.2. Customary tenure and property rights ..................................................................................... 9 2.3. Private land tenure and property rights .................................................................................... 9 2.4. Customary and private tenure concepts: a comparison .......................................................... 10 2.5. Customary land tenure reforms .............................................................................................. 11 2.6. Neo-customary tenure system ................................................................................................ 12 2.7. The relationship between land tenure, property rights and urban land use ............................ 13 2.8. Phases of Informal settlement development ........................................................................... 13 2.9. Conceptual framework ........................................................................................................... 14

3. Research methodology................................................................................................................................ 15 3.1. Research process .................................................................................................................... 15 3.2. Operationalizing the research problem: research design ........................................................ 16 3.3. Case study approach ............................................................................................................... 16

3.3.1. Rationale for selecting a case study approach ................................................................ 16 3.3.2. Quality control ................................................................................................................ 17

3.4. Background to case study selection ........................................................................................ 18 3.5. Data collection techniques ...................................................................................................... 25 3.6. Limitations of data collection ................................................................................................. 30 3.7. Data analysis........................................................................................................................... 31 3.8. Conclusion to the research methodology ............................................................................... 32

4. Background to the study area .................................................................................................................... 33 4.1. The city of Kisumu: changing physical development and urban growth ............................... 33 4.2. Existing land tenure systems .................................................................................................. 35 4.3. Adjudication of customary land rights ................................................................................... 36

4.3.1. Introduction .................................................................................................................... 36 4.3.2. The land adjudication process in Kisumu ...................................................................... 36 4.3.3. Conclusion ...................................................................................................................... 39

5. The nature and dynamics of customary landholding .............................................................................. 40 5.1. The evolution of customary tenure ......................................................................................... 40

5.1.1. Communal control stage ................................................................................................. 40 5.1.2. Family control stage ....................................................................................................... 42 5.1.3. Stage of individual titles and land dealings .................................................................... 43

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5.2. Concluding remarks ............................................................................................................... 47 6. Existing land markets in peri-urban Kisumu ........................................................................................... 48

6.1. Structure of the land market .................................................................................................. 48 6.2. Operation of the formal land market ..................................................................................... 48

6.2.1. Formal allocation systems ............................................................................................. 48 6.2.2. Compulsory acquisition ................................................................................................. 50 6.2.3. Formal land purchase ..................................................................................................... 50

6.3. Operation of the informal land market .................................................................................. 51 6.3.1. Customary land markets ................................................................................................ 53 6.3.2. Neo-customary land markets ......................................................................................... 53 6.3.3. Characteristics of the informal land markets ................................................................. 55

6.4. Concluding remarks ............................................................................................................... 60 7. Impact of the customary tenure system on urban land development processes ................................... 61

7.1. Nature and type of development on land held under customary tenure ................................ 61 7.2. Roles of traditional authorities in urban land management ................................................... 69 7.3. Concluding remarks ............................................................................................................... 72

8. Summary of findings, conclusions and recommendations ...................................................................... 73 8.1. Summary of research findings ............................................................................................... 73 8.2. Conclusions ........................................................................................................................... 76 8.3. Recommendations ................................................................................................................. 77

References ............................................................................................................................................................ 78 Appendices ........................................................................................................................................................... 82

3-1: Key informant interview schedule ............................................................................................. 82 3-2: In-depth interview schedule ....................................................................................................... 83 3-3: Focus group discussion schedule ............................................................................................... 84 3-4: Property owner questionnaire .................................................................................................... 85 4-1: Adjudication map of Kenya ....................................................................................................... 87 4-2: Registry Index Maps (RIMs) ..................................................................................................... 88 4-3: Adjudication of customary rights in former British territories – similarities and differences ... 89 6-1: Certificate of payment of rates and other charges ...................................................................... 90

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List of figures

Figure 2-1: A perfect property right ........................................................................................................................ 8 Figure 2-2: The urbanization process and resultant changes in land tenure and land use practices ...................... 14 Figure 3-1: The research process ........................................................................................................................... 15 Figure 3-2: Location of peri-urban settlements in Kisumu ................................................................................... 20 Figure 3-3: Nyamasaria settlement (Incipient) ...................................................................................................... 22 Figure 3-4: 2003 Quick Bird satellite image of Nyamasaria (0.6m resolution) .................................................... 22 Figure 3-5: Nyalenda 'B' settlement (Intermediate) ............................................................................................... 23 Figure 3-6: 2003 Quick Bird satellite image of Nyalenda 'B' (0.6m resolution) ................................................... 23 Figure 3-7: Manyatta 'A' settlement (Consolidated) .............................................................................................. 24 Figure 3-8: 2003 Quick Bird satellite image of Manyatta 'A' (0.6m resolution) ................................................... 24 Figure 3-9: Focus group discussion session in Manyatta A .................................................................................. 26 Figure 3-10: Sampling procedure for household survey ....................................................................................... 28 Figure 3-11: Spatial distribution of sampled property owners .............................................................................. 30 Figure 3-12: Analytical approach for within-case and cross-case analysis ........................................................... 31 Figure 3-13: The ladder of analytical abstraction .................................................................................................. 32 Figure 4-1: Location of Kisumu in the national context........................................................................................ 33 Figure 4-2: Kisumu urban structure changes ......................................................................................................... 34 Figure 4-3: Distinct forms of land tenure in Kisumu municipality ....................................................................... 36 Figure 5-1: The evolution of customary land tenure ............................................................................................. 40 Figure 5-2: Mode of land access per case study area and acquisition period ........................................................ 44 Figure 5-3: Customary tenure individualization process ....................................................................................... 46 Figure 5-4: Land sale caution notice ..................................................................................................................... 47 Figure 6-1: Sample sale agreement ....................................................................................................................... 51 Figure 6-2: Channels of land access per case study area ....................................................................................... 51 Figure 6-3: Neo-customary land market transaction process ................................................................................ 54 Figure 6-4: Difficult stages in the informal land market transaction ..................................................................... 58 Figure 6-5: Evidence of land ownership ............................................................................................................... 59 Figure 6-6: Sources of finance .............................................................................................................................. 60 Figure 7-1: Sample change of user notice ............................................................................................................. 62 Figure 7-2: Nature and type of housing development in the case study areas ....................................................... 64 Figure 7-3: Land development approval status ..................................................................................................... 64 Figure 7-4: Land rent payment notices .................................................................................................................. 65 Figure 7-5: Land use categories in the case study areas ........................................................................................ 66 Figure 7-6: Existing infrastructure on occupied land ............................................................................................ 67 Figure 7-7: Incremental housing development in Manyatta 'A' ............................................................................. 67 Figure 7-8: An incomplete house in Nyalenda 'B' ................................................................................................. 67 Figure 7-9: Water sources in the case study areas ................................................................................................. 68 Figure 7-10: A house located on a flood plain in Manyatta 'A' ............................................................................. 68 Figure 7-11: Average household plot size distribution ......................................................................................... 69 Figure 7-12: Awareness of roles played by customary authorities in local land development ............................. 70 Figure 7-13: Roles of customary authorities ......................................................................................................... 71 Figure 8-1: The evolution of customary land tenure in the case study areas ......................................................... 74

vi

List of tables

Table 1-1: Distribution of urban population in Kenya by size of urban centres, 1948 - 1999 ................................ 1 Table 1-2: Extent of urban and peri-urban areas ..................................................................................................... 5 Table 2-1: Summary of reforms undertaken on customary tenured land .............................................................. 12 Table 3-1: Measured variables and data collection techniques ............................................................................. 16 Table 3-2: Advantages and inconveniences of case study as a research strategy .................................................. 17 Table 3-3: Peri-urban settlements in Kisumu ........................................................................................................ 19 Table 3-4: List of persons interviewed .................................................................................................................. 25 Table 3-5: Sampling frame for each case study area ............................................................................................. 27 Table 4-1: Steps involved in the land adjudication process................................................................................... 37 Table 4-2: Status of land adjudication in the case study areas. ............................................................................. 38 Table 5-1: Nature of land rights at the communal control stage ............................................................................ 41 Table 5-2: Nature of land rights at the family control stage .................................................................................. 43 Table 5-3: Nature of land rights at the stage of individual titles and land dealings............................................... 43 Table 5-4: Mode of land access per case study area and acquisition period ......................................................... 44 Table 6-1: Typical steps followed when land for allocation is available in urban areas ....................................... 48 Table 6-2: Channels of land access per case study area ........................................................................................ 51 Table 6-3: Actors and roles played in the informal land market ........................................................................... 55 Table 6-4: Time taken (weeks) to conclude land transactions ............................................................................... 55 Table 6-5: Difficult stages in the informal land market transaction ...................................................................... 58 Table 6-6: Evidence of land ownership ................................................................................................................. 59 Table 6-7: Sources of finance ................................................................................................................................ 60 Table 7-1: Land development approval status ....................................................................................................... 64 Table 7-2: Land use categories in the case study areas ......................................................................................... 66 Table 7-3: Existing infrastructure on occupied land .............................................................................................. 67 Table 7-4: Recommended minimum plot sizes for different housing schemes ..................................................... 69 Table 7-5: Awareness of roles played by customary authorities in local land development ................................. 70 Table 7-6: Roles of customary authorities ............................................................................................................. 70 Table 7-7: Institutions governing urban land management and development in the study areas .......................... 71 Table 8-1: SWOT summary of the customary tenure system ................................................................................ 76

International Institute for Geo-Information Science and Earth Observation

1

1. Introduction

1.1. Urbanization and urban growth

Cities and their environments are constantly changing. Projections recently issued by the United Nations

Centre for Human Settlements (2006), suggest that the proportion of people living in concentrated

settlements designated as cities, towns and urban areas in the world is increasing at an alarming rate.

Today, close to 3.6 billion people live in cities, towns and other urban areas compared to 1.5 billion in

1975; just 3 decades ago. Further estimates indicate that by 2020 over 50 percent of the people in the world

will live in areas defined as urban. Undeniably, such growth patterns are expected to affect the balance

between population and land.

Kenya’s urban population; like many other developing countries, has grown tremendously over the past

four decades. In 1962, for instance, only one Kenyan out of every 12 lived in urban centers. However by

1999, the proportion of the urban population had increased to 34.5 percent, attesting that one out of every 3

Kenyans resided in urban areas. Likewise, this is expected to increase to 50 percent by the year 2015.

Strikingly, during the 1989 – 1999 inter-censual period, the country’s urban population had more than

doubled; from 3.88 million to 9.9 million, representing an increase of 155 percent. At that same period, the

number of urban centers had also increased from 139 to 194, representing a 40 percent increase (see, table

1-1).

Table 1-1: Distribution of urban population in Kenya by size of urban centres, 1948 - 1999

Size of urban pop. (000) 1948 1962 1969 1979 1989 1999

No. % No. % No. % No. % No. % No. %

Over 100,000 1 6 2 6 2 4 3 3 6 4 20 10

20,000 – 99,999 1 6 2 6 2 4 13 15 21 15 82 42

10,000 – 19,999 2 12 7 9 7 15 11 12 19 14 18 9

5,000 – 9,999 3 18 11 32 11 24 22 24 32 23 23 12

2,000 – 4,999 10 58 16 47 25 53 42 46 61 44 51 27

Total no. of urban centres 17 100 38 100 47 100 91 100 139 100 194 100

Total urban pop. (millions) 0.28 0.75 1.08 2.31 3.88 9.9

Total country pop. (millions) 5.4 8.6 10.9 15.3 21.4 28.7

Urban pop. as a percentage

(%) of country pop. 5.18 8.72 9.91 15.09 18.13 34.49

Source: Kenya National Bureau of Statistics (1999)

1.2. Why the focus on cities, towns and urban centres?

Urbanization; understood as the concentration of high proportions of people in cities and towns, is now

defining global economic thinking, development planning & interventions. This is because cities, towns


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and urban centers: (a) are now home to more than half of humanity; (b) provide a ready market for rural

goods; (c) are the loci for technological innovations; (d) are key engines for socio-political change; (e)

offer significant economies of scale in providing infrastructural services; (f) are engines of global trade and

services; (g) provide a solid basis for socio-economic development, higher productivity, wealth and

employment creation; and (h) are pivotal in meeting the Millennium Development Goals (Farvacque et al.,

1999; Goater and Tsuji, 1996; UN-Habitat, 2006; UNCHS, 2001; UNCHS, 2004; Yue-man, 1993).

Cohen (2006), observes that, urbanization and city growth are caused by a number of factors: (a) rural-

urban migration; (b) natural population increase; and (c) annexation. He maintains that, since rates of

natural increase are generally slightly lower in urban than in rural areas, the main reasons for rising levels

of urbanization are: rural-urban migration; the geographic expansion of urban areas through annexation;

and the transformation and reclassification of rural villages into small urban settlements. Similarly, Pacione

(2005), observes that, the expansion of the metropolitan periphery can be caused by both the arrival of new

migrants and by the sub-urbanization of the middle class out of the central city.

As cities grow in population and extent the task of managing them becomes ever more complex. Various

studies have shown that, rapid urban growth throughout the developing world has seriously outstripped the

capacity of most cities to provide adequate basic services for their citizens (Dowall, 2003; Farvacque et al.,

1992; Fekade, 2000; Kironde, 2006; Kombe, 2005; Lupala, 2002; Mabongunje, 1992; Olima and Obala,

1998; Rakodi, 2002; Sliuzas, 2004). Yet each year cities continue to attract new migrants. Cohen (ibid),

concurs that this ‘rush of people from the countryside to cities’ frustrates local authorities’ attempts to pro-

actively improve basic infrastructure and deliver essential services; especially in the newly developed areas

of the city.

1.3. Guided land use development in the peripheries: the elusive challenge?

Firman (2004), acknowledges that, recent urban development in cities of developing countries has been

characterised by rapid changes in the use of land in urban centres, as well as by the conversion of prime

agricultural lands to residential areas and other urban land use on the peripheries.

Land is essential for all urban development, yet in most cities there have been no effective measures to

control land development. One consequence of this is that, the urban morphology in most developing cities

and towns is characterised by ‘leap-frog’ development pattern. Kaitilla (1993) maintains that, leap-frog

planning does not proceed in an orderly manner making planning objectives of convenience and efficiency

obsolete. He also explains that, due to obvious difficulties in acquiring land, only those lands that are easily

acquired are developed leaving large tracks of land un-developed in between. Nonetheless, there are

obvious benefits to property owners in expanding urban areas as urban development (for instance, utilities

and infrastructural facilities) encroaches upon such land. Property owners stand to benefit from improved

land values through the transfer of it to urban land uses.


3

Olima (1997), in his study of the urban land management system in Kenya, points out that, the expansion

of town boundaries often resulted in land which was previously held on freehold tenure by individuals and

(or) trust land (not registered in individual or group titles but occupied by a given community and governed

by customary law) being brought into the jurisdiction of local authorities. For that reason, Olima and Obala

(1998), referring to their study of secondary towns in Kenya, note that the provision of facilities and

utilities in the urban fringe has gradually fallen short of need. They found that the inability to control or

guide land use development added to the rising costs of land and made it virtually impossible for the local

authority to find adequate and appropriate sites for low income housing, schools, health services and other

infrastructural facilities and utilities.

A number of studies reviewed here point out that, due to limited capacities, local authorities often fail to

pro-actively contain at an early stage the growth and consolidation of informal settlements. The entry point

in most cases is re-active to existing situations. Intervention takes place when development has already

taken shape. Thus, people in urban areas wallow not only in abject poverty, but they also do not live in

planned urban areas, which are ‘orderly, safe, convenient and healthy living environment’ that is promised

as the gains of land use planning (Falade, 2003). This undermines the efforts to achieve patterned

development and increases the misery of unplanned settlements; a setback to meeting the Millennium

Development Goal No. 7 - ‘To achieve significant improvement in lives of at least 100 million slum

dwellers, by 2020’.

To address this challenge, Rivkin (1978) proposes the following actions to assist local governments to

guide physical development of secondary cities before they grow in ways that are economically and

socially detrimental to further expansion: (a) infrastructure provision; (b) land use regulation and controls1;

(c) building permission requirements2; (d) land banking3; (e) urban renewal; (f) value freezing and taxation

to discourage speculation; and (g) public-private development instruments4.

1.4. Defining the research problem

Recently released population figures estimate Kisumu’s urban population at 375,000 people, representing

an average annual growth of 2.8 percent (Millennium Cities Initiative, 2007). This growth puts Kisumu

amongst urban centres with the highest population growth rate in the country; bringing with it associated

complexities in urban planning. For instance, considerable pressure on land demand for urban development

in general and housing in particular (Olima, 1993). The problem is further compounded by the fact that

1 Zoning, sub-division and building ordinances that guide or restrict use of private land. 2 Government controls or regulations over building types and locations, land coverage and structural standards. 3 Involves acquisition and reservation of land for later use or to control the density of development 4 Acquisition of land by the government and re-parcelling to private developers for controlled uses.


4

government-alienated5 land in the urban area is either unsuitable or too small and scattered to be of any

substantial and adequate use for urban development.

Logically, a major requirement for all urban development is land. Baross and van der Linden (1990),

Kaitilla (1993), among others, emphasize that, no land should be brought forward into use for urban

development without proper advance integrated planning to take care of infrastructure provisions. At

present, the form and structure of Kisumu’s urban fringe is far from the traditional development sequence

(Planning – Servicing – Building – Occupation); it is apparent that there is no rhyme or reason as to the

locations of different land use developments and activities.

Despite the abundance of land in Kisumu’s expanding urban area, its availability is critically constrained

due to protracted and complex land tenure arrangements (Olima and Obala, 1998). In the peri-urban areas,

for instance, successive local authorities have shown an apparent weakness in controlling or guiding urban

land use development; Property owners can do as they wish with their lands, subject to family and

communal obligations that may apply depending on the prevailing land tenure. Municipal officials have

found it nearly impossible to achieve harmony, delight and efficiency in the planning process when

ownership of large parcels of land adjacent to the city is held under customary tenure.

Against this background, the present study is motivated by a desire to understand how the customary

system of landholding in Kisumu adapts and adjusts to the needs of rapid urbanization; as well as its

opportunities and challenges to the spatial planning of the peri-urban zone.

1.5. Objectives of the research

The main objective of this study is to investigate how the customary tenure system in peri-urban Kisumu

adapts and adjusts amidst rapid urbanization. The sub-objectives are outlined as follows:

1) To establish the nature and dynamics of customary landholding;

2) To identify the existing land markets; and

3) To determine the impact of the customary tenure system on urban land development processes in

the study areas.

The present study will also be guided by the expectation that: As urban development proceeds, the informal

institutions that govern land transactions and use change over time, vary between residential areas and

sometimes break down (Rakodi and Leduka, 2004).

1.6. Research questions

The questions that need to be addressed include:

5 Alienated land is that which has been acquired from customary land owners by government, either for its use or private development. Alienated government land represents a mere 7 percent in Kenya.


5

a) Sub-objective 1

• What is the nature of customary land access in the case study areas?

• What are the corresponding land rights and how do these change over time?

b) Sub-objective 2

• What is the existing land market structure?

• How do peri-urban land markets operate?

c) Sub-objective 3

• What is the nature and type of development carried out on land held under customary tenure?

• What are the roles of traditional authorities in controlling and managing urban land development?

1.7. Significance of the study

Managing urban growth has become one of the most important challenges of the 21st century. In this

regard, there has been growing interest in examining the role of the customary landholding system in

developing countries; especially in relation to the overall development process of the peri-urban scene.

Therefore, the present study provides a window of opportunity to ensure that the adverse effects of urban

growth are dealt with and managed in an orderly manner; since high growth patterns tend to affect the

balance between population and land.

1.8. Definition of terms

It is important to define the terms customary tenure, urban, peri-urban and urban land development, in

order to place this study into a proper perspective. In this study, we shall adopt Obala and Kinyungu’s

(2002) definition of customary tenure - referring to land held under customary laws, and governed by

traditional rules and regulations. In the case study areas, such land is usually brought within the area of

jurisdiction of the municipal authority as a result of expansion of boundaries. It is also referred to as the

extended zone.

An urban area is that whose land use has changed from rural (agricultural) to urban (non-agricultural),

normally seen in terms of greater population concentration. On the other hand, the term peri-urban is used

in this study to refer to land around the edges of an urban area, either just within or beyond urban

boundaries, where land use patterns are often in the process of changing from more rural (agriculture) to

more urban (non-agricultural). Table 1-2 illustrates the criteria used to delineate peri-urban areas in the

Kenyan context.

Table 1-2: Extent of urban and peri-urban areas

Type of centre Radius of the peri-urban area*

Major centres (e.g. Nairobi) 20 Km.

Other urban centres (e.g. Kisumu) 3 - 7 Km.

* taken from the centre of planned areas Source: Ministry of Lands (2005)


6

In Kisumu, the peri-urban areas are also considered to be those areas that were formerly outside the

municipality but have been included in the municipality following the boundary extension of 1972. In such

areas, the influence of urban development is visible and often involves the conversion of land to urban

uses.

Lastly, we shall also adopt Olima and Obala’s (1998) and Firman’s (2004) definitions of the term urban

land development – referring to the following aspects: controlled land use; ownership; land transfers

(including extension and change of user); as well as the preservation and enhancement of the natural

environment.

1.9. Limitations of the study

The major setbacks to this study were largely from data sources and data quality problems. For instance,

out of necessity, the present study relied on Pamoja Trust’s6 socio-economic survey7 data because it was

the only comprehensive source of information with regards to informal settlements in Kisumu’s periphery.

Although this was an invaluable resource, there was some degree of incompleteness in the data. By

estimation, 25 percent of the data is incomplete; pending verification and updating by the agency.

The scope of this study required geographical data to illustrate the spatio-temporal change of the urban

extent of Kisumu. Such data was available from different agencies: the Municipal council of Kisumu;

Kenya National Bureau of Statistics; Survey of Kenya; and other government departments. While

comparing data from different sources in ArcGIS, for instance, it was found that some built up areas

mapped in the Municipal council of Kisumu data package was inconsistent to the 2003 Quick Bird satellite

image of Kisumu. Due to data inconsistencies and low reliability issues, this study relied on data sourced

from various data providers in an effort to minimize errors. Besides this, there is also a lack of up to date

maps of the case study settlements.

1.10. Outline of the thesis

This thesis is organised into eight chapters. The present chapter; the introduction, presents the specific

study objectives, questions, as well as the significance and limitations of the study.

Chapter two provides a systematic review of relevant literature. This is intended to establish the theoretical

background and framework for the present study.

Chapter three; research methodology explains and justifies the approach adopted in order to answer the

research questions posed. The section also details: the case study selection criteria; a justification of the

purposive sampling method used; techniques used in data gathering; as well as the approach that was used

6 A local NGO active in upgrading of informal settlements in Kisumu 7 The socio-economic survey commissioned by the UN-Habitat was undertaken between April 2005 and March 2006. The data included: land ownership details; land use; household characteristics and service provision.


7

to analyse the data with regards to the research questions. Data analysis took place in two stages: within-

case analysis and cross-case analysis.

Chapter four draws attention to the study area. The main points of concern being three-fold: the changing

physical development and urban growth of the city of Kisumu; its prevailing tenure situation; and the

process of adjudication of customary land rights – a process that begins with boundary demarcation and

ends with a final adjudication of rights over individual parcels. The discussion shows that some of the

challenges now being encountered in the management of customary land are very much connected to the

original misinterpretations of the land tenure reform programme then.

Chapters five, six and seven, demonstrate the results of the application of the research methodology in

analysis of the case study data.

Last, but not least, drawing on the findings of this study, chapter eight presents a concise yet precise

summary of major findings and conclusions, followed by recommendations considered important and

meaningful.


8

0

0.2

0.4

0.6

0.8

1Exclusivity

Inheritability

Transferability

Security

2. Land use and tenure systems in developing countries

This chapter establishes the theoretical background and framework for the present study.

2.1. Defining land tenure and property rights

Simply stated, land tenure is the mode (legal or communal) of holding rights to land. Property rights, then

are a bundle of characteristics; (exclusivity – ‘who’, inheritability – ‘how’, transferability – ‘where’, and

security – ‘when’), that define the use of land (Alchian and Demsetz, 1973; Owusu and Agyei, 2007).

Figure 2-1, illustrates the characteristics of property rights as measured along the axes in four dimensional

space.

*The higher the numerical value (on a scale from 0 to 1), the more perfect the property right. Thus, a measure of 1 implies complete certainty in the respective property right. Zero implies lack of certainty.

Figure 2-1: A perfect property right Source: Adapted from Arnason (1999) Briefly, the content of these characteristics are as follows:

1) Security/ quality of title refers to the ability of the owner to withstand challenges by other

individuals and maintain his/ her property right.

2) Exclusivity refers to the ability of the property rights holder to utilize and manage the resource in

question without outside interference. Enforcement is an important aspect of exclusivity.

3) Inheritability refers to the time span of the property right.

4) Transferability refers to the ability to transfer the property right to someone else. The ability to

sub-divide (divisibility) the property into smaller parts for the purpose of transfer is an important

aspect here.

According to Payne (1997), any rights that a person holds in/ on land may be considered as property. He

maintains that rights exist in parallel with ownership, for instance:

1) Use rights – rights to use land for grazing, farming, and hunting.


9

2) Access rights – the ease by which communities, households and individuals acquire land for

livelihood activities and shelter needs.

3) Control rights – rights to make decisions on how the land should be used (developed) including

decisions on what activities will happen, and who is to benefit.

4) Transfer rights – rights to sell or mortgage the land and convey it to others.

Since there can be a multiple of property rights associated with land and the resources on/ under it, we

often refer to a ‘bundle of rights’. In a broad sense, rules of tenure define how property rights to land and

natural resources are to be allocated within societies.

2.2. Customary tenure and property rights

Customary tenure is the mode of holding rights in land that exists through customs and traditions

(Kalabamu, 2000). It is also referred to as traditional, indigenous or communal land tenure. A wide range

of customary tenure concepts prevail in sub-Saharan Africa; often accounting for a large proportion of the

total land area. Distinctive features of this system as noted by various scholars include:

1) Customary land is not subject to personal ownership, although use rights are alienable (capable of

being sold or transferred) within and between members of the community (Agbosu, 2000);

2) There is an individual right of occupation and use of land - the ‘right of avail’ - and is uniformly

applied to all and automatically shared by all people belonging to a particular community, tribe or

clan. It is from this ‘right of avail’ that all other rights (individual or common) are derived

(Kalabamu, 2000)

3) The rules governing the acquisition and transmission of property rights are usually explicitly and

generally known, though not normally recorded in writing (Bentsi-Enchill, 1964); and

4) Authority over the allocation of rights may be vested in a group of elders, tribal chief or king

(Ogolla and Mugabe J, 1996).

Recent studies on land related issues in sub-Saharan Africa, reveal that lands held under customary tenure

are coming under pressure from expanding rural populations or the growth of urban areas (Kombe, 2005;

Mends, 2006).

2.3. Private land tenure and property rights

Private land tenure is also referred to as individualized, modern or statutory land tenure (which includes

freehold and leasehold tenure). Private land ownership and the registration of individual property rights is

largely an imported concept within developing countries. Through a series of proclamations, decrees,

orders in councils, etc. tracts of land were expropriated from Africans by European settlers and colonial

administrators and, subsequently, territories divided into native reserves and European land. While

customary land tenure provisions remained operative in areas reserved for natives, private land tenure

systems were imposed on expropriated land. Settler populations were later issued with various forms of

ownership titles by colonial governments. The remaining expropriated land was vested in governments of

the colonizing power as crown land for allocation to future settler populations (Shivji, 1998).


10

Kalabamu (op. cit.), points out that, in private land tenure systems, land rights are defined by law and

supported by documentary evidence; the title deed, unlike under customary law where active occupation or

usage is the main evidence of ownership, entitlement or existing interest. Thus, the private land tenure

systems imported with them the concept of ‘land ownership’, which he notes, has two meanings:

1) “A bundle of rights to own, control, use, abuse, and dispose of land” under Roman law. This is

closely related to freehold tenure under which land ownership is exclusive and perpetual.

2) “Ownership of certain interests (bundle of rights) in land which are defined, secure, guaranteed

and, most important of all, can be transferred on the market at the will of the owner” under

market capitalism.

Payne (op. cit.), posits that, private land ownership permits the unrestricted exchange of land and property

markets in which the balance between supply and demand is achieved through the pricing mechanism. It is

also intended to ensure the most efficient and flexible use of land and normally produces the easy

transformation of rural land into urban use, subject to statutory controls and their enforcement. In many

countries however, a common issue of concern with this concept is its inability to ensure equitable access

to land or property by lower income groups.

2.4. Customary and private tenure concepts: a comparison

Opinions are divided as to whether private land tenure and management systems are better than customary

ones or vice versa. Chome and McCall (2005), report the following benefits of the private tenure system:

1) It provides security to owners and other persons who have an interest in the land, and thus

stimulates investments in the land.

2) It enables owners to use registered land as security for formal housing or other loans.

3) It reduces disputes and litigation over land.

4) It facilitates all transactions concerning land and make dealing in land easier, cheaper and safer.

5) It enables the recording of transfers, ownership, sub-divisions and land use.

6) A land register can be the basis for other public registers, for instance, land taxation purposes.

7) Documentation of land units permits better land use planning and environmental management.

8) It transforms public perception of neighbourhoods from being undesirable to being attractive.

9) It increases the accountability of public authorities.

In response, Kalabamu (op. cit.), argues that, those in favour of the customary tenure systems have

acknowledged them on three major counts. First, by upholding the right of avail to every household within

the community, the system prevents concentration of land ownership among a few people and avoids

landlessness. Secondly, the fact that communal land rights supersede individual land rights ensures equal

and unlimited access to land resources by all community members. Thirdly, and emanating from the above

two, customary tenure systems guarantee peace and stability among community members as well as

efficient use of natural resources. Hence, it is claimed that customary land tenure systems, promote

peaceful co-existence for everyone.


11

Other scholars argue that, customary tenure and management systems do not fit well with present-day

socio-economic realities. They cite the following reasons:

1) It hinders agricultural development (Boydell and Holzknecht, 2003; Rakodi, 2002).

2) Individuals are unable to use land as collateral and are, therefore, unable to access credit finance

(Kwadwo, 2006).

3) It is unwritten; thus complicates land administration systems (Rakodi, 2002).

4) It does not necessarily offer women equal rights and security; mainly due to the traditional male

dominated cultural structures which pervade most countries (Payne, 2004).

5) The right of avail and inheritance by all siblings encourages widespread land fragmentation which

leads to un-economic landholdings, decreased land productivity and an impediment to an active

land market (Abdulai and Ndekugri, 2007).

6) It encourages litigation; hence perpetuates clan rivalries and tribal divisions (Boydell and

Holzknecht, 2003).

7) Decision-making is controlled by conservative elderly people who are not receptive to

modernisation or the introduction of new ideas and techniques in the use of land (Kalabamu,

2000).

8) Chiefs, headmen and other land administrators tend to abuse their responsibilities by allocating

large tracts of land to themselves or their associates; resulting in unequal distribution of land. They

are also accused of favouring individuals who provide them with money, beasts, alcohol or other

material goods and/or services (Kalabamu, 2000).

Noteworthy, is that, while some of the above misgivings are based on western perceptions and societal

values (rooted on the need for documented, transferable and legally binding forms of land rights); the

criticisms levelled at customary land tenure are more relevant to methods of land use rather than land

tenure as such.

2.5. Customary land tenure reforms

As earlier noted, prior to the onset of colonisation, traditional African settlements were structured

according to local customs and practice. Communal land was vested in traditional rulers. The development

and control of the total environment, on the other hand was the joint administrative responsibility of the

entire community.

The advent of colonisation, however, found the overlapping rights of several parties to one tract of land

intolerable and immediately set about regularizing what they saw as a chaotic state of affairs. In the

process, existing communal land ownership systems were disrupted and replaced with the western model of

private ownership. Table 2-1 provides a summary of the reforms undertaken during and after colonisation

on customary tenured land.


12

Table 2-1: Summary of reforms undertaken on customary tenured land Dispensation Response Outcomes/ limitations

Colonial Conferring freehold titles on most foreign

land concessionaries Creation of dual or multiple systems of land tenure.

Occupancy permits, occupancy certificates

and state leases for the natives

Post-colonial Government acquisition and development

(implemented in Nigeria, Botswana, Kenya)

• Places considerable strain on the institutions

responsible for policy implementation

• Fierce and protracted wrangling over amounts

of compensation

Development by customary landowners

(implemented in Papua New Guinea)

• Unlikely to succeed in areas where there is any

suspicion, or history of conflict, between clans

• In the absence of profits, this approach may fail

• Conflicts may arise when it comes to deciding

the type of tenure ‘would-be’ settlers and

customary owners receive.

Development by private developers

(implemented in several sub-Saharan

African countries)

• Cumbersome and fraught with risks which

discourage efficient development, especially

when land registers are not well maintained

Public and private sector joint ventures.

• Lease-lease back8

• Guided land development9

• The advantage of these approaches is that

customary groups would retain some, or all, of

their primary rights

Source: Compiled from Coldham (1979); Deobele (1983); Farvacque et. al. (1992); Mifsud (1967); Glazier (1976); Payne (1997); and Rakodi (2002).

2.6. Neo-customary tenure system

In urban and peri-urban areas, the customary tenure system does not operate essentially as described in

section 2.2. Instead we have a mixture of reinterpreted customary practices with other informal and formal

practices in operation; referred to as the neo-customary tenure system (Durand-Lasserve and Mattingly,

2003). Cleaver’s (2002), concept of ‘institutional bricolage’ (a process by which current and traditional

social and cultural relationships are reshaped into new institutional arrangements – either consciously or

unconsciously), provides a striking comparison to the neo-customary system.

8 Under this arrangement, a clan agrees to lease land to the government, which then leases it back under statutory laws, so that the clan can then lease through government to private individuals. This overcomes the problem that clans are not allowed to alienate land to outsiders directly 9 In this approach, the government leaves land under customary control and assists traditional owners to prepare a development plan which the authorities can then formalize with the provision of planning permission and public services


13

Based on their extensive studies in sub-Saharan African cities, Durand-Lasserve and Mattingly (ibid),

make the following observations about the neo-customary tenure system: (a) they treat land rights as

market commodities; (b) they are based on trust, which provides a degree of security of tenure that may not

be given through other informal land delivery systems; and (c) they involve central and local governments

institutions. Neo-customary actors, play an important political and social role at settlement levels, and are

often able to position themselves as necessary intermediaries between the communities and the

administration (even where they are not officially recognised).

2.7. The relationship between land tenure, property rights and urban land use

Payne (op. cit.), posits that, land tenure and property rights can exert a significant influence over land use

and land values. He maintains that, most forms of tenure involve some form of limitation as to the ways in

which land or property may be used and can form, if enforced, a useful tool in urban management. For

instance:

1) In customary tenure systems, this may be determined by the tribal leaders or by tradition and

restricts what occupants of land may do with it. Any change of use would require the approval of

the leader and possibly other members of the group and is not likely to be easily obtained.

2) In publicly owned or controlled land, occupants are generally subject to a wide range of statutory

and contractual limitations, all of which may carry heavy penalties for failure to conform.

3) In private tenure systems, freehold tenure theoretically offers occupants the greatest degree of

autonomy and freedom to use land as they wish and to realize its full market value, though this

may be constrained through statutory and contractual measures enforceable in law.

2.8. Phases of Informal settlement development

In his discussion of the informal settlement development process, Fekade (2000), argues that the growth

pattern of an informal settlement does not follow a linear pattern; that is, settlement development does not

occur consistently over its lifetime but explodes at a certain stage of its growth. The incipient (starting/

infancy) stage is initiated by low income households converting closely located peripheral agricultural land

to residential uses. They engage in incremental development, starting with primitive houses that are

scattered in the settlement.

The intermediate (boom) stage; characterised by collective expansion follows next. Land use becomes

predominantly residential. The settlement also acquires a distinctive spatial structure with buildings

invariably positioned with regard to some form of access routes and central public spaces. Social

organization is strong, as collective responsibility still overrides individual economic pursuits.

The final phase; the consolidated (saturation) stage is usually characterised by vertical densification.

Majority of dwellings are as a result of added storeys to buildings, which results in a blurred spatial

organisation. Land prices rise due to scarcity of building spaces in the settlement. Institutions of social

organization developed in the previous phases weaken considerably. Kombe and Kreibich (2000), capture

this deterioration of affairs in this stage as follows: ‘…at (the saturation) stage of settlement growth,


14

informal sector institutions at the grassroots are no longer efficient tools for adjudicating interests and

rights in land and ensuring tenure security… This is the stage where the need for public intervention

becomes critical. Beyond a certain level of settlement density, which corresponds to a high competition for

building land, contentious issues or open conflicts between private or market interests and communal needs

become so frequent and intensive and the local informal institutions so weak that in the absence of public

intervention, the communal interests have to yield to the power of the market. …Over time the market, in

reaction to changes in the socio-economic environment generates new demands, values and forces which

not only challenge, but may erode the old structures (of social organization)’.

2.9. Conceptual framework

Figure 2-2, illustrates the urbanization process and resultant changes in land tenure and urban land use

practices. Due to push and pull factors, migrants seek a foothold in the city to exploit opportunities for a

meaningful and better life. This ignites the process of urbanization and its consequences for land access

and rights. For instance, the acute shortage of land and high rents in the city, facilitated by an overheated

urban land market, lack of employment opportunities, and weakening of socio-cultural networks and ties.

The deepening of this situation leads to a rush for peri-urban land, as well as land speculation. The lack of

or inadequate institutional framework results in both legal and illegal land development processes by

developers, driven by the desire to exploit the opportunities for survival in an urban setting.

Process Driving forces Visible outcomes

• The ‘push’ of rural areas and ‘pull’

of the urban centres

• Demographic change

• Overheated urban land market

• Breakdown of socio-cultural

networks and ties

• Increased land values - mainly fuelled

by speculative pressure

• Land use changes

• Leap-frog development

• Opportunities for survival in an

urban setting

• Absence of clear regulations and

administrative authority over land use.

• Proliferation of informal settlements.

• Lack of infrastructural facilities and

utilities.

* according to Werhmann (2001); illegality – implies violation of both land tenure and planning laws Figure 2-2: The urbanization process and resultant changes in land tenure and land use practices Source: Adapted from Nkwae (2006) and Owusu and Agyei (2007)

Rural urban migrants and urban natural population increase

Opportunities in the city

Acquisition of peri-urban land

Engage in legal/ illegal* Peri-urban land development

processes

Acute shortage of urban land and housing


15

3. Research methodology

3.1. Research process

Figure 3-1 summarizes the steps involved in the present research endeavour. Figure 3-1: The research process

Development of a detailed plan (research proposal) for data collection, processing and analysis: Appropriate research instruments, resource-effective sampling plan

Statement of the problem that motivates the study

Identification of the study goal: Statement of study objectives, questions and guiding assumption

Identification of data and sources of information to answer the study questions

Conduct data analysis and presentation of findings: Within-case analysis and Cross-case analysis

PRE

-FIE

LD

WO

RK

P

HA

SE

FIE

LD

WO

RK

P

HA

SE

POST

-FIE

LD

WO

RK

PH

ASE

Definition of the sampling units

Data visualisation: Maps, flow charts, summary tables, graphs

Drawing conclusions and relating them back to the initial problem

Empirical data collection:

Qualitative techniques: Key informant interviews; in-depth interviews; focus group discussions; field observations; and document reviews

Incipient Settlement

• Property owners Intermediate Settlement

• Property owners Consolidated Settlement

• Property owners

Quantitative techniques: household surveys

Literature review focussed on: Research strategies

Literature review focussed on: Land tenure and urban land development


16

3.2. Operationalizing the research problem: research design

For a precise understanding of the issues under investigation, a brief examination of the research objectives

in chapter one is in order; to highlight the variables that were measured and interpreted. This is

demonstrated in table 3-1, below.

Table 3-1: Measured variables and data collection techniques

Research objectives Measured variables Data collection techniques

To establish the nature

and dynamics of

customary landholding

• Nature of customary land access over time

• Nature of customary land rights over time

• Household survey

• Key informant interviews

• Focus group discussions

• In-depth interviews

• Field observations

To identify the existing

land markets

• Types of land markets

• Actors: roles and motives

• Characteristics of observed land markets





To determine the impact

of the customary tenure

system on urban land

development processes

• Nature and type of development carried out on land

held under customary tenure

• Roles of traditional authorities in urban land

development





• Field observations

• Documentary reviews

3.3. Case study approach

3.3.1. Rationale for selecting a case study approach

This study largely employed a case study approach as a research strategy. Yin (1994), notes that case study

is a viable research strategy when the following matched the research environment:

1) the research questions are explanatory;

2) the focus of the research is on contemporary events; and

3) behavioural events within the research environment occur within a real world context and are

outside control of the researcher.

The present study fulfils these conditions. Since the researcher was keen in investigating how the

customary land tenure system in peri-urban Kisumu has adapted and adjusted itself over time and why

present spatial development trends existed; it was deemed necessary to select multiple cases. In this context

three settlements in different stages of formation were selected, namely; incipient, intermediate and

consolidated.


17

Using this approach, empirical data was gathered through quantitative and qualitative methods. Local land

owners were mainly targeted in household surveys; their viewpoints and experiences regarding how land is

made accessible and acquired within their respective settlements being the main focus. These were

supplemented by qualitative methods comprising of: key informant interviews; in-depth interviews; focus

group discussions; and field observations. Use of multiple data types (data triangulation) to investigate the

research questions was necessary in validation of claims and strengthening of empirical data. It also offered

ways to enrich the data analysis.

3.3.2. Quality control

Every methodology has weaknesses and involves trade-offs, and the case study approach is no exception.

Yin (1994) and Kingsley and Bozeman (1997), summarized main advantages and inconveniences of case

study as a research method; shown on table 3-2.

Table 3-2: Advantages and inconveniences of case study as a research strategy Advantages Inconveniences

• Level of data collection (richness) • Problems of generalisation

• Useful for unknown phenomenon • Difficulties in analysis of causal relationships

• Good learning tool • Resource intensive (human and financial)

• Flexibility

Source: Adapted from Yin (1994); and Kingsley and Bozeman (1997) In view of this, conscious attempts were made to enhance reliability and validity of the findings. The

following control checks were used:

1) While ideally, the presence of two researchers at each interview may have been the most suitable

method of obtaining descriptive validity, cost considerations made this unfeasible. Each interview

was recorded and later transcribed verbatim, except in one case where an interviewee would not

give consent. This ensured that the notes compiled during the interview were an accurate reflection

of the information being provided by the interviewee;

2) Given the sensitive nature of the information sought by the interviewer; care was taken to establish

a relationship of trust with interviewees. Interviewees were fully informed of the nature and

importance of the study, as well as how and why they had to be chosen for inclusion;

3) Triangulation – use of multiple methods for collecting and analyzing data so that all sources

converge on the facts of a case (Kohn, 1997) – was employed. This meant that multiple kinds of

data sources and multiple respondents were built into the design of the study. As noted earlier, use

of a variety of data sources as opposed to relying solely upon one avenue of observation was

essential in validation of claims and strengthening of empirical data. It also offered ways to enrich

data analysis; and

4) Interviewers were adequately trained in administration of the household survey questionnaire thus

minimising the potential for the misinterpretation of the household survey questionnaire.

Generally, this ensured consistency in data collection.


18

3.4. Background to case study selection

Case study selection was guided by two criteria: (a) cases were selected to represent contrasting phases of

settlement formation (incipient, intermediate and consolidated). In brief, this would provide insights into

the nature and dynamics of the customary system of landholding; and (b) cases selected were former rural

villages which were incorporated into the municipal area following the extension of their administrative

boundaries. These settlements are often referred to as ‘informal’ by municipal officials apparently because

they have been developed without approval from the municipal authorities. Likewise, land development in

these areas does not conform to the town planning standards. Table 3-3 and figure 3-2, provides a summary

of the peri-urban settlements in Kisumu and their locations respectively.

Out of the seven potential cases, Manyatta ‘A’, Nyalenda ‘B’ and Nyamasaria settlements were favoured

for a number of reasons: (a) all settlements manifest the three contrasting development phases; (b) one can

find varieties of land tenure systems (freehold and customary) existing; (c) the settlements varied history of

land occupation gave contrasts and comparisons hardly found in the other settlements; and (d) the

settlements are inhabited by diverse people, with different land uses and developments.

International Institute for Geo-Inform

ation Science and E

arth Observation

19

Table 3-3: Peri-urban settlem

ents in Kisum

u

Settlement

Population* A

rea (Km

. 2) D

ensity** L

and tenure D

evelopment

phase

Adm

inistrative

location***

Obunga

8,576 8.5

1,009 Freehold

Consolidated

Kanyakw

ar

Manyatta A

rab and Kaloleni

13,515 2.1

6,436 Leasehold

Consolidated

Kibuye

Bandani

13,961 13.1

1,066 Freehold

Consolidated

Kogony

Manyatta B

21,027

3.3 6,372

Freehold C

onsolidated M

anyatta B

Nyalenda B

21,644

6.1 3,548

Freehold/

Custom

ary Interm

ediate N

yalenda B

Nyalenda A

(including Nyam

asaria) 23,731

2.8 8,475

Freehold/

Custom

ary

Intermediate/

Incipient

Nyalenda A

/

Kasule

Manyatta A

41,910

2 20,955

Freehold C

onsolidated M

anyatta A

*1999 population census ** Persons per K

m. 2 (1 square km

= 100 Ha)

*** Based on sub-location

Source: Adapted from

UN

-Habitat (2005)

Inte

rnat

iona

l Ins

titut

e fo

r Geo

-Info

rmat

ion

Sci

ence

and

Ear

th O

bser

vatio

n

20

Fi

gure

3-2

: Loc

atio

n of

per

i-urb

an se

ttle

men

ts in

Kis

umu

Sour

ce: A

dapt

ed fr

om U

N-H

abita

t (20

05)


21

a) Case 1: Nyamasaria (incipient phase)

Nyamasaria, located to the south-east of Kisumu city along Nairobi road is the furthest settlement;

characterised by dispersed development. Active conversion of rural agricultural land to urban uses is

presently occurring. The settlement is undergoing rapid land sub-division and urbanising devoid of

sufficient infrastructure and utilities. See, figures 3-3 and 3-4.

b) Case 2: Nyalenda ‘B’ (intermediate phase)

Nyalenda ‘B’ is a settlement in rapid transition. The original inhabitants of the area are selling land to new

developers who have been putting up quality residential houses (UN-Habitat, 2005). Thus, the area is

characterised by a chaotic mix of new and older but expanding pockets of housing. Most of the buildings

have no approval by the municipal authorities.

Most of the land is held on freehold tenure. Although officially abolished and replaced by freehold tenure,

it is common to find pockets of land where tenure relations are regulated by customary law. Families hand

down land to successive generations as is typical in a rural set up.

UN-Habitat (ibid), reports that, internal road access is sub-standard; access is only possible by cycling or

walking. For a long time, the planning standards used were for rural areas, implying that access roads were

6 metres wide. Under urban settings, such roads would only serve access to one plot. In the rural case, even

the 6 metres criteria was not fully adhered to, hence we find most access roads squeezed to as little as 4

metres. See, figures 3-5 and 3-6.

c) Case 3: Manyatta ‘A’ (consolidated phase)

Manyatta ‘A’ is a fully consolidated and cosmopolitan settlement, exhibiting a sense of order. Most

residents have land title deeds as a result of the previous government’s slum improvement efforts; with the

World Bank’s assistance in the late 1970s.

UN-Habitat (ibid), reports that, the area’s internal access roads are well designed and the network

improved to increase the accessibility to more than 60 percent. In addition, land ownership has steadily

changed from individual ownership by indigenous populations to small plots bought by people from

outside the area who have invested in residential and commercial properties. See, figure 3-7 and 3-8.

Inte

rnat

iona

l Ins

titut

e fo

r Geo

-Info

rmat

ion

Sci

ence

and

Ear

th O

bser

vatio

n

22

Figu

re 3

-3: N

yam

asar

ia se

ttle

men

t (In

cipi

ent)

Figu

re 3

-4: 2

003

Qui

ck B

ird

sate

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23

Figure 3-5: Nyalenda 'B' settlement (Intermediate)

Figure 3-6: 2003 Quick Bird satellite image of Nyalenda 'B' (0.6m resolution) Source: Municipal council of Kisumu, Town Planning Department

Inte

rnat

iona

l Ins

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24

Figu

re 3

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25

3.5. Data collection techniques

Data collection is the process of gathering the specific information used to answer the research questions.

As no single method is really suitable to fully capture the complexity of the customary land tenure system,

a combination of different types of data collection techniques was systematically applied: (a) in order not to

miss important information; (b) to fulfil requirements of validity and reliability; and (c) for complementary

purposes (given advantages and disadvantages of various methods).

Primary data collection took place from September 8th to 29th 2007. Methods employed included: key

informant interviews, in-depth interviews, focus group discussions, field observations and household

surveys. Documentary reviews (secondary data sources) bolstered findings from fieldwork. Table 3-4

provides a summary of interviews conducted during fieldwork, thereafter followed by a discussion about

each.

Table 3-4: List of persons interviewed Level/ Institution Roles No. of interviews

Central government

• Ministry of lands

and settlement

District land adjudication and settlement officer 1

District land registrar 1

District lands officer 1

District land surveyor 1

Local government

• Municipal council

of Kisumu

Director, town planning department 1

Assistant director, town planning department 1

Land rates officer, town treasurer’s department 1

Municipal engineer 1

Private sector

Professional physical planner based in Nairobi (and former director

of physical planning, ministry of lands and settlement) 1

Professional physical planner based in Kisumu (and former district

physical planning officer, Kisumu) 1

Non-governmental

organisation

• Pamoja trust

Contact persons based in Kisumu and Nairobi 2

Academic experts

• Maseno university

Head, department of urban and regional planning 1

Senior lecturer, department of urban and regional planning 1

Village elders Based in Manyatta A, Nyalenda B and Nyamasaria (including

assistant chiefs) 3

A land agent Based in Manyatta A 1

Property owners Manyatta ‘A’, Nyalenda ‘B’ and Nyamasaria 90


26

a) Key informant interviews

Key informants comprised of: relevant central government officials; local government officials at Kisumu

municipal council; private sector professionals involved in urban planning and management; a local NGO

active in upgrading of informal settlements in Kisumu; and urban planning and management professionals

at Maseno University. They were selected due to the presumption that they were considerably qualified to

provide answers to questions on state land policies in Kisumu’s context. Case study protocols were

developed to provide for a systematic process in the interviews. (See, appendix 3-1).

b) In-depth interviews

In depth interviews were carried out with informants purposively selected on the basis of their outstanding

knowledge of issues at stake. These included; a land agent based in Manyatta A settlement as well as a well

renowned customary land owning family residing in Manyatta A settlement. (See, appendix 3-2).

c) Focus group discussions

Focus group discussions with village elders were useful in validation of findings which were generated

much earlier in key informant interviews. Suitable venues within each settlement were identified for focus

group discussions. A total of three focus group discussions were conducted comprising of four to eight

persons. Recruitment of participants for each focus group discussion was facilitated by local assistant

chiefs. (See, appendix 3-3).

Figure 3-9: Focus group discussion session in Manyatta A Source: Field survey

d) Field observations

Field observations played a key role in data collection during the case study areas transect survey and

actual survey. To facilitate interpretation of observed features, the observations were aided by 2003 Quick

Bird satellite images of the case study settlements with 0.6 metre resolution. Where appropriate, the

observed phenomena were recorded by taking photographs and illustrations.

e) Household surveys

In order to collect quantitative data on the nature and dynamics of the customary land tenure system, it was

necessary to conduct a household survey on a selected number of households drawn from the study areas.

Such interviews employed structured questionnaires and targeted property owners.


27

While undertaking socio-economic mapping survey in Kisumu’s informal settlements; commissioned by

UN-Habitat (2005), Pamoja Trust managed to assemble a comprehensive database comprising of several

variables: (a) land ownership details; (b) land use; (c) household characteristics; and (d) level of services,

amongst others. Since the database realized from this survey was made accessible to the researcher, the

household survey sought to supplement it, by focusing on issues not adequately addressed then. Survey

questions were generally of two types: open-ended and closed-ended. The complete questionnaire is

enclosed as appendix 3-4.

Household survey questionnaires were administered with the help of research assistants, who were directly

involved during the previous socio-economic mapping exercise. Interviewers were adequately trained in

administration of the household survey questionnaire prior to the exercise. By virtue of being natives of the

case study areas, interviewers were essential in delineation of case study area boundaries and provision of

feed-backs on questionnaire design. Small changes were made through the questionnaire; for instance,

translation to the local dialect, as well as rephrasing some of the questions before actual survey

commenced.

Sampling procedure for household survey

According to Reid (1987), sample size is determined by two factors; resources available for the study and

degree of precision required. The first factor predestines study duration and number of persons who can be

interviewed. The second is important since the greater the sample size, the more accurate will be the

estimated mean (Kumar, 2005).

A total of 90 respondents were interviewed, and these consisted of customary and private property owners.

To realize this, a spatial database obtained from Pamoja Trust was used in sample selection. At first

systematic sampling was used to obtain the required respondents. This was followed by simple random

sampling combined with purposive/ judgemental sampling; because of the inability of the systematic

sampling method to provide the targeted groups. Admittedly, the sample is quite small. However, it is

important to keep in mind that statistical rigour was not the main emphasis of the present study. The

approach employed is based on collecting facts and developing insights about the customary tenure system

through structured interviews, focus group discussions and field observation. Table 3-5 illustrates the

sampling frame for each

case study area.

Whereas, figure 3-10

depicts the sampling

procedure employed.

Table 3-5: Sampling frame for each case study area Source: Compiled from the Pamoja Trust socio-economic database, 2005

Nyamasaria (incipient)

Nyalenda ‘B’ (intermediate)

Manyatta ‘A’ (consolidated)

Total property owners (N) 113 4178 1091 Sampled property owners (n) 30 30 30


28

Figure 3-10: Sampling procedure for household survey

Select by query case study areas and their respective property

owners’ details

Sampling frame - record of property owners (N)

Systematic random sampling Interval width = N/ n

Decide on sample size

(n=90)

Combination of simple random sampling and purposive/ judgemental sampling (customary and private property owners)

Socio-economic mapping database

Export the sample spreadsheet as a dBase

file and join the two attribute tables using plot

number as the primary field

Visualize the sampling distribution of the property owners in ArcGIS (shown on figure 3-11)

Questionnaire administration

Questionnaire checking and editing: • Completion of all sections • Answered by respondents

qualified for participation • Unsatisfactorily answered

questionnaires verified

Coding and data entry: • Sorting, categorizing and

assigning codes to each possible response for each question.

• Efforts made to retain as much detail as possible during data entry

Cleaning the data: • Consistency checks to identify

out of range values • Extreme values closely

examined

Data analysis


ation Science and E

arth Observation

29

(a) Sampled property ow

ners in Nyam

asaria (incipient)

(b) Sampled property ow

ners in Nyalenda ‘B

’ (intermediate)


30

(c) Sampled property owners in Manyatta ‘A’ (consolidated)

Figure 3-11: Spatial distribution of sampled property owners

3.6. Limitations of data collection

In view of the primary and secondary data that had to be collected, time allocated for the study was modest.

Considerable time was also spent in securing authorization for conducting fieldwork. This had a bearing on

the household interviews schedule. Therefore, in order to get enough information as possible within this

time, six interviewers residing in respective case study areas were recruited and adequately trained to help

in administering household survey questionnaires.

Some property owners resided in other formal areas of the city (absentee property owners). In such a

situation, we sampled the adjoining property and interviewed the owner. Moreover, several respondents

were impassive during household interviews, citing that they had witnessed similar kinds of studies in the

past but had realized no benefits from them. This trend necessitated the researcher to cross check responses

with results of the recently concluded socio-economic mapping data. Unsatisfactorily answered

questionnaires were verified with the help of village elders.


31

At the time of undertaking this study, the district physical planning officer – a key informant – had just

been transferred. Understandably, the incoming district physical planning officer was not at ease in

addressing local issues as far as urban planning and management of Kisumu was concerned. In such a case

the researcher sought to interview a professional planner who had recently held the role of district physical

planning officer and was well versed with the local situation.

Inevitably, the sampling frame obtained from Pamoja Trust exhibited missing and duplicated entries. Thus,

in drawing the samples care was taken not to include deficient entries. Finally, I would also say that there is

a lack of relevant data in Kisumu, especially when one is looking at a problem that has not been given

much emphasis in the past.

3.7. Data analysis

Having established and justified the methodological framework and data collection techniques adopted for

conducting the present study, this final section describes the approach that was used to analyse the data

with regards to the research questions. Data analysis took place in two stages: within-case analysis and

cross-case analysis. Figure 3-12 illustrates the analytical approach for within-case and cross-case analysis.

Figure 3-12: Analytical approach for within-case and cross-case analysis Source: Adapted from Yin (2003) a) Within-case analysis

In within-case analysis; the findings in relation to the research sub-objectives for each single case were

explained using the process of data reduction, data display and drawing of conclusions and verifications

Case 1: Nyamasaria (Incipient phase)

Case 2: Nyalenda ‘B’ (Intermediate phase)

Case 3: Manyatta ‘A’ (Consolidated phase)

Findings of case 1 Findings of case 2 Findings of case 3

Introduction

Conclusion

Sub-objective 1 Sub-objective 2 Sub-objective 3

Main objective

Within-Case Analysis

Cross-Case Analysis


32

(Miles and Huberman, 1994). The qualitative data analysis process began with the coding of collected data

into categories based on emerging themes and patterns (Figure 3-13). In addition, the findings of each case

study were comprehensively and individually presented, since each case study represented an independent

information rich experiment (Yin, 1994).

Illustrative quotations of the key informant interviews, in-depth interviews, and focus group discussions

were provided verbatim; not just to illustrate the theme being described and to support the findings of each

case, but to provide the voice and experience of the persons interviewed candidly.

Figure 3-13: The ladder of analytical abstraction Source: Adapted from Carney (1990) in Miles and Huberman (1994)

b) Cross-case analysis

As a final stage of data analysis, the findings of the within-case analysis; in the form of summary tables,

were used in performing the cross-case analysis. Cross-case analysis involved identifying and summarising

similarities and differences amongst the three cases in relation to the research sub-objectives. Thereafter,

the case findings were combined in an effort to address the main objective of the study.

3.8. Conclusion to the research methodology

This chapter describes various data gathering techniques and data analysis strategies utilized. Arguably, the

selected approach befits the study’s main objective; which is to investigate how the customary tenure

system in peri-urban Kisumu adapts and adjusts amidst rapid urbanization. Chapters five, six and seven are

devoted to the analysis of the case study data.

But first, before delving right into the analysis, chapter four considers the background to the study area,

next.

1) Summarizing and coding of data

2) Identifying themes, patterns and relationships in the data overall

3) Integrating the data into one explanatory framework


33

4. Background to the study area

4.1. The city of Kisumu: changing physical development and urban growth

Kisumu, Kenya’s third largest urban

agglomeration is situated on the Kavirondo gulf;

an arm of Lake Victoria (figure 4-1). Kisumu’s

origin dates back to 1898, as a railway terminus.

In 1901, Port Florence; later re-named Kisumu

was established after the completion of the

Kenya-Uganda railway. In 1903, Kisumu was

gazetted as a township occupying an area of

about 4.025 km2. A grid structure largely

determined the shape of the colonial town (Figure

4-2 (a)). The development of the town between

1902 and 1914 was accelerated by development

of several stations along Kisumu and its

hinterland.

Figure 4-1: Location of Kisumu in the national context Source: University of Texas map collection, 2007

Between 1915 and 1930, Kisumu continued to grow within the grid structure and culture specific sector

frameworks as defined in the first period. This phase was conspicuously characterised by a more

concentrated development as opposed to the scattered and far-flung developments with enormous open

spaces in between (Figure 4-2 (b)). Additional development included a 1923 boundary amendment to

include the aerodrome areas which were later reverted to native reserve in 1930.

In 1930, the town boundary was reduced to make it more manageable (UN-Habitat, 2005). Land was

allocated along ethnic grounds; hence racial segregation divided the town and greatly influenced further

planning and policy (Figure 4-2 (c)). In 1941, Kisumu town was granted the status of a municipal board.

The urban structure and development in this period was characterized by demarcation of new outlying

areas. Colonial power relations became more pronounced and there was development of race specific

neighbourhoods and segregation on environmental health basis (Figure 4-2 (d)).


34

(a) 1908 (b) 1910 - 1929

(c) 1930 – 1939 (d) 1940 - 1962 Figure 4-2: Kisumu urban structure changes Source: Municipal council of Kisumu, Town Planning Department


35

In 1960, Kisumu was elevated from a municipal board to a municipal council. Notably, Kisumu was

witnessing increased development of villages which were growing in its periphery with particular focus to

Nyalenda and Manyatta (Mwamburi and Adolwa, 2006).

The UN-Habitat (ibid), notes that, in 1972, based on recommendations of the Ogutu commission in 1968,

the boundaries of Kisumu municipality were extended to include a total area of 53 km2. This process

caused the division of the town into two distinct land tenure zones, namely land under leasehold in the old

boundary, and land on freehold in the extensions. Up until 1972, when the boundary of the municipality

was extended, unplanned settlements fell under the jurisdiction of the Kisumu county council and the

district administration of the rural Kisumu district. This meant that any planning that was applied in this

peri-urban region was of rural type, and therefore was less demanding of developers and urban planning. In

2000, following the elevation of the town to city status, the municipal boundaries were further extended to

include approximately 65 percent of Kisumu district. At present, the city covers an area of 417 km2. (157

km2. of water and 260 km2 of land) and a population estimated at 500,000 people.

4.2. Existing land tenure systems

Kenya; like other sub-Saharan African countries, manifests a dual land tenure system, carried over from the

colonial era. Ng’ong’ola (1992) reports that, the bulk of the land falls within the category of ‘tribal land’;

predominantly held and occupied by indigenous people under customary notions of land tenure. The state

also holds as ‘state land’ a fairly significant proportion which fell under the category of ‘crown lands’

during the colonial era. A tiny proportion falls within the category of ‘freehold land’; predominantly held

and occupied in conformity with common law conceptions imported into African countries with colonial

rule. To some extent both state land and freehold land are held under or governed by ‘received law’, in

contrast to tribal land which is largely held under customary law.

Shipton (1984) and many others, have argued strenuously, that Kenya has had the most dramatic land

tenure reforms in Africa in recent decades. Way back in 1954, concerns over the modernization of

customary land tenure prompted the introduction and implementation of an ambitious customary land

adjudication, transformation and registration programme; which has since, profoundly altered the social

dimensions of land tenure.

A previous study in Kisumu by Olima and Obala (1998), established the existence of four distinct forms of

land tenure: (a) customary/ trust land, mainly found in the peri-urban areas which are still vested in the

hands of county councils; (b) private leasehold/ freehold land in the hands of individuals, companies and

corporations; (c) un-alienated public/ government land, referring to land where a government agency is the

owner. For instance, forest reserves and special areas such as parks, roadways, and public institutions; and

(d) non-formal de-facto tenure, referring to land acquired, occupied and used without permission from its

owner, whether by a public body or a private person. Figure 4-3 illustrates this.


36

Figure 4-3: Distinct forms of land tenure in Kisumu municipality Source: Adapted from Olima and Obala (1998)

4.3. Adjudication of customary land rights

4.3.1. Introduction

Dale and McLaughlin (1988), define land adjudication as the process whereby existing rights in a

particular parcel of land are finally and authoritatively ascertained. The adjudication of land rights has been

identified as one of the key cadastral processes; the other being land transfer and mutation (sub-division

and consolidation) (UN-FIG, 1996; Williamson, 1997). These are considered vital in ensuring an efficient,

secure and effective land market.

As earlier mentioned, since attaining independence in 1963, the Government of Kenya has vigorously

implemented the land adjudication programme, which has seen more land been brought within the land

registration system, governed by the Registered Land Act (Cap 300) (see, appendix 4-1). The arguments

advanced in favour of the programme are many and varied. For instance, Coldham (1979), points out that,

at the very least, it is designed to put an end to boundary disputes, to make titles secure, and to introduce a

safe, simple and cheap system of conveyance (transfer of property title from one person to another). In

addition, it was anticipated that, this would encourage farmers to invest labour and profits in their holdings,

and enable them to offer registered titles as security for credit. For this reason, the process is sometimes

seen as the cornerstone of the government’s policy for rural development.

4.3.2. The land adjudication process in Kisumu

Table 4-1, outlines the adjudication procedure10 adopted in Kisumu, which is fairly typical of procedures

adopted elsewhere in Kenya.

10 Governed by the Land Adjudication Act (Cap 284)


37

Table 4-1: Steps involved in the land adjudication process. Action Time

(weeks) Costs* (Kshs.)

1. Declaration of an adjudication area (sub-location) and appointment of

Adjudication Officer(s) by the Minister of Lands and Settlement.

-

2. The Adjudication Officer, after consulting the District Commissioner of the

district within which the adjudication section lies, appoints an adjudicating team.

In practice this team consists of the Demarcation Officer, the Survey Officer, the

Recording Officer, the Adjudication Committee chairman (usually the area chief

or assistant chief) and a handful of committee members residing in a particular

section.

-

3. The Adjudication Officer divides the adjudication area into sections, publishes

separate notices defining the limits of each section, and specifies the period

within which claims to interests in land within the section will be entertained.

From the date of notice, the powers of customary authorities over land cease.

-

4. The Demarcation Officer entertains claims to interests in land, ascertains the

boundaries thereof, plans a fresh layout, and re-arranges (consolidates) the

holdings accordingly.

-

5. The Survey Officer surveys all ascertained pieces and prepares a demarcation

map. Registry maps are then compiled. The registry map provides an index to the

land register, whereby the boundaries, location, and distinctive number of each

land parcel on the register can be ascertained. (See, appendix 4-2).

-

6. The Recording Officer prepares a record of existing rights for every parcel shown

on the demarcation map. The record contains the following:

a) Property section – showing the number and approximate area of the parcel;

b) Proprietorship section – the holder’s name, whose right is recognized as

ownership;

c) Encumbrance section – the designated land category and any conditions and

restrictions on the power of the holder to deal with the land or his interest, if

any;

d) The date on which it was completed.

72** -

6. Resolution of outstanding disputes by the Arbitration Committee. 32 300

7. Completion of the adjudication record, signified by signatures of the Recording

Officer and persons recorded as having an interest in private land.

-

8. The Adjudication Officer signs a certificate of completion and publishes a notice

indicating the place at which the record and map can be inspected.

12 -

9. Dissatisfied individuals lodge objections to the Adjudication Officer (in some

instances, beyond him, the Minister of Lands and Settlement); who determines

the objections ‘in any manner he thinks just’. After which the adjudication record

becomes final.

8 500


38

10. The Adjudication Officer is obliged to sign a certificate to the effect and deliver

the record and demarcation map to the Land Registrar for preparation of land

registers and certificate of title.

2 -

11. When the land register is completed, the registered proprietor is vested with

‘absolute ownership’ (freehold tenure) of that land together with all rights and

privileges belonging or appurtenant thereto’

- 345

Total 12611 1, 145 * Minimum costs accruing to an individual landholder. Variations depend on whether one is aggrieved by the exercise or otherwise. ** Represents the sum for steps 1 to 6. Source: Compiled from discussion with the District Land Adjudication and Settlement Officer Although the procedure outlined appears to be straightforward, substantial difficulties may arise especially

in relation with the adjudication register preparation. In some sections, as pointed out by the District Land

Adjudication and Settlement Officer, the process is reported to have taken much longer. See, table 4-2.

Table 4-2: Status of land adjudication in the case study areas.

Adjudication section

(sub-location) Date declared Date registered Duration (yrs.) Area (Ha) No. of parcels

Manyatta ‘B’ 24/4/1978 31/12/1982 4.7 330 876

Manyatta ‘A’ 4/5/1978 1994 15.7 200 3,529

Nyalenda ‘A’ 14/6/1978 13/12/1982 4.5 280 1,300

Nyalenda ‘B’ 14/6/1978 13/12/1983 5.5 610 1,047

Kasule* 14/4/1979 1984 4.7 820 1,772

* Nyamasaria falls within this administrative area, occupying an area of approximately 54 Ha Source: Department of Land adjudication and Settlement, Ministry of Lands and Settlement – Kisumu. Delays in completion of the land adjudication process were mainly attributed to: (a) administrative and

technical bottlenecks; and (b) disputes stemming from boundaries and ownership of land between and

among family members. In some cases it appears that, not all villagers were present when the land

adjudication and registration process was underway. Upon returning to their respective settlements, the

villagers discovered that land which used to be theirs was now registered in someone else’s name; typically

that of a member of the extended family.

In accordance with the Land Adjudication Act (Cap 284), processing of title deeds cannot commence, until

the adjudication register is declared complete and final. Thus, all pending objection cases have to be

resolved by the respective arbitration boards. As elsewhere in Kenya, dispute resolution occurs at different

levels, typically starting within the family and then, if not resolved, proceeding to higher and higher

authorities (village elders, land adjudication committee and land arbitration board).

11 This is equivalent to 2.4 years.


39

Mifsud (1967), points out that, several features of the Kenyan land adjudication process deserve notice, and

distinguish it from other processes of adjudication of customary land rights elsewhere in other former

British colonies (see, appendix 4-3): (a) the process is systematically applied area by area, and does not

give the landholder an option of whether to utilize the machinery provided by the law or not; (b) other than

provide for the clarification of existing rights, the land adjudication law, introduces the concept of

ownership and the purpose of the procedures it prescribes is the conversion of the old title into a new non-

customary one, defined in western legal terms; and (c) the adjudication committee determines the person

whose right, according to the native law and custom, is to be recognized as ownership; the adjudication,

however, turns out to be nothing else than a preliminary to reallocation, resettlement or consolidation – a

principal aim of the legislation being to deal with the problem of fragmentation of holdings.

4.3.3. Conclusion

The foregoing analysis aptly captures the Government of Kenya’s relentless efforts at the extinguishment

of customary tenure through systematic adjudication of customary land rights, registration of title, and its

replacement with a system similar to the English freehold. Despite all this, experience from Kenya; and to a

considerable extent as the fieldwork analysis reveals, customary land tenure systems have remained very

vibrant, adapting to changing conditions.

An insight into the nature and dynamics of customary landholding in the case study areas is presented,

next.


40

5. The nature and dynamics of customary landholding

5.1. The evolution of customary tenure

This section considers two aspects of customary landholding: (a) land access; and (b) land rights. Land

access refers to the ease by which communities, households and individuals acquire land. On the other

hand, land rights refer to the rules, laws, policies and processes governing access (Owusu and Agyei,

2007). Land rights may be based on national legislation, on customary law or on combination of both

(Durand-Lasserve and Mattingly, 2004).

Ng’ong’ola (1982), citing Lord Lugard, posits that, customary land tenure in every society evolves from a

communal control stage, through a family control stage, to the stage of individual titles and land dealings,

as depicted in figure 5-1.

Figure 5-1: The evolution of customary land tenure Source: Adapted from Ngóngóla (1982)

5.1.1. Communal control stage

The main features of customary landholding during this stage were: (a) its collective aspect; (b) its

hierarchical character, according to which, rights at different levels were exercised over the same piece of

land by different persons; and (c) social identity, in the sense that, membership in a community qualified

access to land.

Okoth-Ogendo (2004), notes that, the amount of land held by community members then, was dependent on

their user needs. Thus, land was allocated on the basis of need. Within the native Luo community; like

many other descent-based systems in Kenya, the chief was the central figure around whom day to day life

revolved. The chief had the power to: (a) allocate and distribute land; (b) to regulate its actual use; and (c)

to resolve disputes. He could not alienate any part of tribal land to members of a different clan (non-

members) without the approval of his people.

Land was essentially categorized as residential and arable land. When the community originally moved to a

new settlement area, the chief was the first to select a site for communal meetings and his quarters. He then

proceeded to allocate land to the respective headmen, who after selecting their residential sites, in turn

proceeded to allocate portions to household heads. As far as possible every person was expected to build

and reside within his family group.

Communal control Family control Individual titles and land dealings


41

After the allocation and distribution of residential land, arable land in the vicinity was identified and

distributed in a similar manner. At each stage, the allocation had to be sufficiently generous to allow for

future expansion. Here too, the expectation was that cultivation rights would be exercisable within the

locality assigned to the family. In the event that the land allocated to the family was inadequate or

otherwise unsuitable, cultivation rights could be sought elsewhere. Beyond the areas designated for

residence and cultivation, the rest of the territory became potential grazing land. All unallocated areas

remained under the control of the chief and was available for allocation to any other member of the

community. This ensured both inter- and intra-generational equity among members of the community who

were bound together through common descent.

Land rights of the community members, therefore, depended on the category of land and the use to which it

was put (see, table 5-1). Grazing rights were the least localized or particularized. Cultivation rights were

fairly exclusive and inheritable. On the other hand, rights to residential land were exclusive to the

respective household. Residential land was inheritable and could be transferred to other members of the

family group, but it was not readily transferred to non-members and it could not be sold. The rigid

insistence on family segregation militated against such transfers.

Table 5-1: Nature of land rights at the communal control stage

Property rights User Characteristic of property right

Exclusive Inheritable Transferable Security

Residential Member √ √ √ √

Non-member × × × ×

Cultivation Member √ √ √ √


Grazing Member × × × ×


*Where √ - implies existence of a property right and × - implies non-existence Community membership formed the basis for acquiring communal rights (usufruct rights) to land and loss

of membership entailed loss of those rights. For men, this was not a problem as they were more or less

assured of life membership in their communities. However, it was a major problem for women whose

access and use rights were pegged to their membership of communities through their relationships with

male members of those communities. When a woman got married, she lost membership in her birth

community and became a member of her marriage community; her membership, therefore, was pegged to

the sustainability of the marriage. She effectively lost the membership if her marriage collapsed, although

traditionally she would have been assured of access to land as long as she had borne male children.

At present, communal landholding does not exist in the case study areas. However, as one village elder

observed, communal landholding is restricted to farmlands in the rural interiors.


42

5.1.2. Family control stage

Urbanisation and colonialism ushered in a situation where family interests in land gained prominence;

leading to a gradual transformation of land from communal into family landholding. At this stage, the

position of family heads as sources of land supply became more significant than that of clan heads or

village chiefs; although clan heads or village chiefs continued to exercise their mediating roles.

a) Land allocation to members of the indigenous land owning community

The typical native Luo household consisted of the head of the family, his wives, his unmarried children and

perhaps some other relatives. Each of his wives would be given her own plot of land to cultivate with the

help of her unmarried children. As soon as one of his daughters got married, she had to live on her

husband’s land. On the other hand, as soon as one of his sons was considered mature and married, he

would be allocated some land by his father. The boundary of the land allocated to him was demarcated by a

traditionally recognized plant; an indication to all indigenes that the land was now occupied. His land

usually comprised part of the land previously cultivated by his mother. It would lie to the front of his

father’s compound and he was expected to build and cultivate in much the same direction as his father

(Coldham, 1978). The ease of land access is attributed to the fact that, money never featured in this type of

allocation of land. The main principle was that no male member of the community was without land. The

land so given was inheritable down the family line.

With time, it became impossible to continue expanding in a certain direction, because, for instance, the

land adjacent was already occupied by a different household. Thus, it became necessary to move away and

resettle on vacant land nearby. Where this happened, members of different families and sub-clans became

scattered and fragmentation of landholdings was now inevitable. Several scholars point out that, it is this

increasing pressure on the land that brought the question of boundaries into prominence – which required

certain adaptations of the customary system of landholding. It is hardly surprising therefore, that in the later

colonial years, the natives were most receptive to the customary land tenure reform process.

b) Land allocation to members outside the indigenous land owning community

A cross-section of village elders interviewed held the view that, in the past, when the availability of land

was not a problem, a non-member of a particular community was considered for land allocation on two

accounts: (a) only after he had lived there peacefully for a reasonable length of time; and (b) identified with

the host community. However, in order to maintain the rights in the land, non-indigenes had to cultivate

(use) it continuously, and could not pass on these rights in inheritance without the host’s consent. This was

extremely precarious in the sense that his rights could never materialize into ownership, no matter how

long he had used and occupied the land – the only option then was to move away. See, table 5-2.


43

Table 5-2: Nature of land rights at the family control stage




Non-member √ × × ×


Non-member √ × × ×

Grazing Member √ √ √ √


*Where √ - implies existence of a property right and × - implies non-existence

5.1.3. Stage of individual titles and land dealings

This stage was marked by the presence of: (a) a high degree of population density; (b) the contraction in

supply of land in the urban centres; (c) frequent and increasing litigation in land matters, indicating

uncertainty in customary law; and (d) prevalence in land sales. The commodification of land and

individualization of titles to land provided the major turning point in this stage.

According to native custom, individual ownership is understood as the unrestrained and exclusive right of

the individual to use and dispose of the land. The existence of such a customary right in the case study

areas was confirmed and recognized by the village elders. The individual rights were manifested in several

ways, such as: (a) use rights, for instance building on the land, burying the dead, felling natural trees; (b)

transfer rights, that is selling the land (or part of it) to another person; and (c) exclusion rights, that is

keeping anyone else from the land in question (see, table 5-3). Notably, the village elders lamented that, the

absence of family or clan controls on the exercise of such individual rights (except possibly in the matter of

disposal on death) indicated the high degree of individualization that customary tenure had reached in the

study areas.

Table 5-3: Nature of land rights at the stage of individual titles and land dealings




Non-member √ √ √ √


Non-member √ √ √ √

*Where √ - implies existence of a property right and × - implies non-existence Table 5-4, depicts the mode of land access per case study area. The period before 1963 (pre-independence)

represents the communal control stage. At this stage, the control over land was kept centralized in the

hands of communal leaders. The period 1963 to 1979 represents the family landholding stage. At this stage,


44

0

2

4

6

8

10

12

14

16

Before 1963

1963 ‐1978

1979 ‐to date

Before 1963

1963 ‐1978

1979 ‐to date

Before 1963

1963 ‐1978

1979 ‐to date

Nyamasaria (incipient) Nyalenda 'B' (intermediate)

Manyatta 'A' (consolidated)

no. of sam

pled

prope

rty ow

ners

Case study area and Acquisition period

Purchased

Inherited

the government had embarked on the land adjudication programme12 which resulted in communal leaders

rapidly losing their control over land allocation. Lastly, the stage of individual titles and land dealings is

represented by the time period 1979 to date. At this stage, outright purchases of land were rapidly

becoming embedded in social relations. Most of the customary land rights were being transferred either to

new residents (non-indigenes) or to land speculators.

Table 5-4: Mode of land access per case study area and acquisition period

Nyamasaria Nyalenda ‘B’ Manyatta ‘A’ Before

1963

(n=12)

1963 –

1978

(n=10)

1979 – to

date

(n=8)

Before

1963

(n=6)

1963 –

1978

(n=11)

1979 – to

date

(n=13)

Before

1963

(n=10)

1963 –

1978

(n=6)

1979 – to

date

(n=14)

Inherited 91.7 80 37.5 83.3 36.4 23.1 90 50 7.1

Purchased 8.3 20 62.5 16.7 63.6 76.9 10 50 92.9

Total (%) 100 100 100 100 100 100 100 100 100

*inherited implies land that is still held under the customary tenure system

**purchased implies land that is individually owned and not anymore under the customary tenure system

Source: Compiled from the household survey

*inherited implies land that is still held under the customary tenure system

**purchased implies land that is individually owned and not anymore under the customary tenure system

Figure 5-2: Mode of land access per case study area and acquisition period Source: Compiled from the household survey

12 Coldham (1979) argues that, registered land owners regarded the land adjudication programme as simply a means of

securing boundaries and putting an end to the sort of disputes that formerly prevailed in many areas.


45

Figure 5-2, indicates that a relationship exists between the source of land and acquisition period. The

inference to be drawn is clear; the concept of individualization of customary land is highly established in

Manyatta ‘A’ and Nyalenda ‘B’. Outright sales of land in these settlements have increasingly become

common, while the power of the traditional authorities to control such sales has withered away. In

Nyamasaria, the emergence of a market in land was a fairly recent development. Migrants drawn from the

neighbouring towns such as Kisii have been rapidly acquiring land in this settlement. The migrant

respondents here commonly held the view that, it was still recommendable for aspiring property owners to

ensure the involvement of the assistant chief and village elders’ in any land deals: “The local leaders’

awareness of, who owns what locally strengthens our (the migrant’s) position in this settlement. Besides,

their testimonies have always proved useful in settling land disputes”.

But when migrants from Manyatta ‘A’ and Nyalenda ‘B’ were asked whether they accepted customary

authority, they responded in the negative. A lot of them asked the researcher why such a question was put

to them. Individual households in these settlements operated independently from communal control as far

as urban land development was concerned. Durand-Lasserve and Mattingly (2003), corroborate this view

by observing that as soon as customary land is subject to a monetary transaction, it enters within neo-

customary logic.

Customary tenure individualization process: the case of Osawo13

My grandfather - the late Mzee Osawo was among the first people to settle in Manyatta ‘A’. This was in

the year 1890. In 1901, when the Kenya-Uganda railway line was completed, Mzee Osawo became the first

African to be recruited by Kenya Railways. You see, my grandfather was a well respected man in this

settlement. When it came to land, he owned a lot of it.....about 25 acres to be precise. Things apparently

went on well until during the land adjudication process in the 1960s. A large chunk of Mzee Osawo’s land

was lost at this time when government officials unfairly allocated it for public use. You see, all this land

where Manyatta primary school, Kosawo primary school, the assistant chief’s office, and Kosawo

community hall are currently located belonged to my grandfather.

However, not all land was taken by the government. There was also time when our fathers (Osawo’s sons)

began sub-dividing and selling our ancestral land to other people. What you see now is the only remaining

piece of land belonging to Osawo – just 1 acre (see, figure 5-3). Up to date, people still come around

inquiring whether we would be willing to offer our land for sale. It is so annoying...There is no land for

sale here anymore – that’s the reason why we put this sign on that tree (see, figure 5-4). You see our

ancestral land has been sub-divided to such an extent that it can no longer provide a reasonable living to

the respective patrilineal heirs and their families. Our grandfather was buried here, and so we as his

grandchildren (4 sons and their respective families) feel obliged to preserve the remaining ancestral land

in his honour.

13 Compiled from in-depth discussion held with Mzee Osawo’s grandson

Inte

rnat

iona

l Ins

titut

e fo

r Geo

-Info

rmat

ion

Sci

ence

and

Ear

th O

bser

vatio

n

46

(a)

orig

inal

anc

estra

l lan

d at

t1 (1

890)

(b

) an

cest

ral l

and

at t2

(196

0s)

(c)

ance

stra

l lan

d at

t3 (2

007)

*bui

ldin

g fo

otpr

ints

ext

ract

ed fr

om th

e 20

03 q

uick

bird

sate

llite

imag

e (0

.6m

reso

lutio

n)

Figu

re 5

-3: C

usto

mar

y te

nure

indi

vidu

aliz

atio

n pr

oces

s So

urce

: Com

pile

d fr

om in

-dep

th d

iscu

ssio

n he

ld w

ith M

zee

Osa

wo’

s gra

ndso

n an

d M

anya

tta ‘A

’ vill

age

elde

rs


47

This case provides a vivid example of how, with time

customary interests in land yield to the power of the

urban land market. The findings corroborate Amanor’s

(2006) view that, due to increasing commodification of

customary land rights, inheritance rights over land

under customary tenure regimes are no longer

guaranteed as many people belonging to customary

land owning families are left to compete for less land.

Figure 5-4: Land sale caution notice Source: Field survey

5.2. Concluding remarks

The findings reported in this chapter indicate a progressive shift from communal to individual

landownership and related rights to land in the case study areas. Despite the fact that, the power of the

traditional authorities to control land dealings is gradually disappearing, the survival of other aspects of

customary land tenure are still evident. To appreciate this we need to look at the existing land markets in

peri-urban Kisumu, next.


48

6. Existing land markets in peri-urban Kisumu This section examines the structure and operation of the land markets in the case study areas.

6.1. Structure of the land market

Svivam (2002), defines the land market as the institution that deals with the transfer of ownership rights

concerning land. Thus, land markets are driven by both demand14 and supply15 factors (Farvacque et al.,

1992). According to the district lands officer, land markets in Kenya and particular in Kisumu, tend to

manifest a dual-type structure; that is formal and informal.

Under the formal land market, the state and local government supplies land for urban development through:

(a) formal allocation systems namely the lottery system, direct application and administrative approval, and

reservations; (b) compulsory acquisition of agricultural land from private property owners; and (c) formal

land purchase.

On the other hand, under the informal land market, land for urban development is mainly supplied by: (a)

customary actors such as clan heads, family heads, relatives; and (b) neo-customary actors who are mainly

individuals, land speculators and land agents/ brokers who had previously acquired land directly from

customary property owners. This by far was the most widespread means of access to land in the case study

areas.

6.2. Operation of the formal land market

Field observations indicated that the role of the formal land market in the case study areas was quite limited

partly due to its inefficiencies. However, it is interesting to note how it operates.

6.2.1. Formal allocation systems

a) The lottery system

This system was used before the 1980s to allocate land to individuals for residential purposes; and has been

accredited with a number of settlement schemes. When and if land was available for allocation, access to it

was through a number of steps, as documented in table 6-1.

Table 6-1: Typical steps followed when land for allocation is available in urban areas

Action Time*

1. Director of Physical Planning prepares a development plan or part development plan showing

various land uses (such as industrial, residential, commercial, educational, e.t.c.) 6**

2. Valuation of the plots to establish their market value by the Chief Valuer 1

14 Determined by demographic pressure, household income, cultural/ social factors, and economic factors (such as the capacity for mobilizing household savings and access to credit) 15 Determined by topography and physical conditions, patterns of land ownership, availability of infrastructure, and government regulations


49

3.

The Commissioner of Lands advertises available plots in the Kenya Gazette16. The

requirements of the advertisement include closing date and place where application forms can

be obtained at a non- refundable fee

1

4. Interested individuals collection and fill in application forms from the respective local

authorities 1

5. Submission of completed applications and payment of a refundable deposit -

6. Recording and listing of all applications received before the closing date 3

7. Consideration of applications by the respective DPAC17 and actual balloting for allocation 1

8. Successful applicants are notified to the Commissioner of Lands 1

9. The Commissioner of Lands issues letters of allotment to the beneficiaries, normally with

some development conditions attached indicating terms and conditions of allocation 1

10. Payment of stamp duty and other fees (such as ground rent, road charges e.t.c.) -

11. The Director of Surveys initiates the plot survey, deed plan preparation and approval process 24

12. Preparation of the certificate of title and submission to Commissioner of Lands for signing

and sealing 12

13. Registration of certificate of title by the Chief Land Registrar 6

14. Notification of owner to collect certificate of title 1

Total 58

*time in months **3 months for plan preparation and 3 months for plan inspection Source: Ministry of Lands (2005) Clearly, close to five years elapsed between the availability of land for allocation and the issuance of the

certificate of title. Other than, the cumbersome and time consuming nature of this system, Musyoka (2004),

also noted the following shortcomings: (a) publicity on available public land for allocation was inadequate;

(b) high poverty and illiteracy levels excluded others from being reached; and (c) often plots for allocation

were hardly advertised, raising doubts about transparency of the process. After the 1980s, this system was

abandoned in favour of other approaches (Ministry of Lands, 2005).

b) Direct application and administrative approval system

This system was commonly used in the late 1980s and 1990s. Under it, an applicant applied directly to the

Commissioner of Lands (or a county council). The successful applicant received a letter of allotment;

which was a non-negotiable offer by the state or the county council, to take a leasehold interest in certain

land. Within 30 days after receiving the letter, the individual was required to pay the standing premium;

which was about 20 percent of the market value of the plot and other associated costs. Failure to do so

16 In the absence of advertised plots individuals may still apply to the chairman of the District Plot Allocation Committee (DPAC); which comprises of the District Physical Planner (DPPO), District Land Officer (DLO), District Land Registrar (DLR), District Surveyor (DSO) and the Town Clerk. 17 The DPAC has to verify with the respective DLO and DPPO whether the land applied for is available and whether it is government or trust land according to the official records.


50

resulted in a lapse of the offer (Ministry of Lands, 2005). Unfortunately, this system was prone to the

following limitations: (a) plots were allocated without necessarily being advertised as required by law; (b)

applications were screened and approved without a clearly established set of criteria and procedures; and

(c) whoever needed a plot could apply, hence making it difficult to distinguish between a genuine

developer and a land speculator.

c) Reservations

Mainly entails the direct allocation of government or trust land to public agencies by the Commissioner of

Lands. In Kisumu, this is limited to railway and road reserves.

6.2.2. Compulsory acquisition

The Land Acquisition Act (Cap 295) empowers the government to acquire privately owned land for public

purposes such as for development of schools, health facilities or open spaces. First, the land is valued by

the chief valuer, and then the affected owners are compensated by the government at the market rate.

Inevitably, this process also has had its fair share of setbacks such as: (a) lack of funds for compensation;

(b) political interference; and (c) fierce and protracted wrangling over amounts of compensation.

6.2.3. Formal land purchase

Unlike the formal allocation system, formal land purchase is not cumbersome and time consuming; since

all the necessary documents are ready at the time of transaction. The process starts when the vendor (seller)

and purchaser (buyer) enter into a legally binding sale agreement before a lawyer. Both parties usually

bear the transaction costs involved; a lawyer’s fee and transfer fee payable to the Commissioner of Lands.

Once the purchaser has paid the negotiated price, the plot is registered and transferred in the land registry.

Figure 6-1 illustrates a sample sale agreement. However, empirical evidence from studies carried out in

other Kenyan towns, strongly suggest that, those who have access to land in the formal market are

individuals with formal and reliable sources of income.

REPUBLIC OF KENYA SALE AGREEMENT*

AN AGREEMENT made on [date] BETWEEN [name] of [I.D. number] and of [sub-location] within [district] of

the Republic of Kenya (hereinafter referred to as the “Vendor” which expression shall where the context so admits

include his heirs, personal representatives assigns and successors in title) on the first part AND [name] of [I.D.

number] and of [sub-location] within [district] of the Republic of Kenya (hereinafter referred to as the “Purchaser”

which expression shall where the context so admits include his heirs, personal representatives assigns and successors

in title) of the second part.

W H E R E A S

1) The Vendor is the owner of all that piece of unregistered land situated in [sub-location] within [district] and

bordering.......................... road on the right and containing by measurement [plot area in Hectares] or

thereabouts (hereinafter referred to as “the Plot”) more particularly described on the annexed plan herein;

and


51

0% 20% 40% 60% 80% 100%


Nyalenda 'B' (intermediate)


Customary Neo‐customary Government

2) The said Vendor having sold the said plot to the Purchaser in the [year] for a consideration of Kenya shillings

[amount] only now past paid; and

NOW THIS AGREEEMNT WITNESSES as follows:

In pursuance of the aforesaid and in consideration of the sum of Kenya Shillings [amount] paid by the purchaser to the

vendor before execution hereof in the [year] – now past (receipt whereof the vendor hereby acknowledges), the

Vendor hereby AGREES TO TRANSFER ALL his right title and interest in the said property to the purchaser.

* Information pertaining to this particular sale agreement has been withheld to protect the identity of the parties involved Figure 6-1: Sample sale agreement Source: Department of Lands – Ministry of Lands and Settlement, Kisumu

6.3. Operation of the informal land market

As already indicated above, informal land transactions are by far the most widespread means of access to

land in the case study areas. The reasons for informality, according to the district lands officer were: (a) the

lack of title deed certificates – “most households in the peri-urban areas do not have their title deeds, but

they do have the registration numbers that were issued when land registration first took place in the

1960s”; and (b) the parties involved

opt for informal transactions so that

they do not have to pay taxes (stamp

duty18) for land transfers. Table 6-2

shows the channels of land access in

the case study areas.

Table 6-2: Channels of land access per case study area Source: Compiled from the Pamoja Trust socio-economic survey

Figure 6-2: Channels of land access per case study area Source: Compiled from the Pamoja Trust socio-economic survey

18 This is the fee for administrative procedures applied for each land transaction

Nyamasaria (n=113)

Nyalenda ‘B’ (n=4178)

Manyatta ‘A’ (n=1091)

Customary 29.2 26.7 14.2 Neo-customary 70.8 73.3 85.2

Government 0 0 0.6 Total (%) 100 100 100


52

The Pamoja Trust socio-economic survey database indicates that 29 percent of the sampled properties in

Nyamasaria were sourced from customary actors through inheritance, whereas 71 percent were sourced

through neo-customary actors. Focus group discussants drawn from Nyamasaria recounted that: “due to the

expansion of the city boundaries in the recent past, land sales had become an extremely profitable income-

generating activity. Individuals (land speculators), mostly outsiders managed to obtain land from

customary sources, sub-divide it and then resold it instead of developing it.”

Out of the sampled properties in Nyalenda ‘B’ settlement, 73 percent had been sourced through land

agents/ brokers. Land agents/ brokers were private individuals who sourced and kept records of land

available for sale. They advertised themselves informally, and when they got clients they introduced them

to the property owners where transactions were concluded and they got their commission. Field

observations indicated that, due to the fear of infuriating traditional landowning individuals (who neither

supported nor encouraged the sale of land by their own people to outsiders), the day to day operations of

land agents/ brokers in this settlement were carried out undercover. Those who benefited from customary

land inheritance in this settlement accounted for the remaining 27 percent. The following statement by a

village elder aptly illustrates the attachment of the locals towards the customary inheritance practice:

“Land shortage encourages sons to stay, after marriage, on or near the land of their fathers. Staying on

and inheriting part of a paternal holding has always been viewed as a much easier way of obtaining land.”

In Manyatta ‘A’; the consolidated case, the database indicates that, 86 percent of the sampled properties

were accessed through land agents/ brokers. It is interesting to note that, their operations were quite

different from their Nyalenda ‘B’ counterparts in that they operated from designated points (rented

premises); a clear indication of the confidence and recognition they enjoyed at the neighbourhood level.

Focus group discussants drawn from this settlement confirmed that land agents/ brokers played an integral

part in the settlement’s land market chain. Local property owners often involved them in land transactions.

Discussion with one land agent based in this settlement yielded that: “On a good day, about ten people

would visit our office to inquire about local real estate.” Land agents received a commission in

transactions concluded with their assistance. There was no fixed commission value as it all depended on

whether the property at stake was situated in an attractive location and whether it had the appropriate paper

work (for instance, a land title deed and certificate of payment of rates and other charges – see, appendix 6-

1).

The socio-economic database indicates that 14 percent of the properties in this settlement were acquired

through customary actors. However it should be noted that this was an outcome of inheritance practices in

the last decades. The focus group discussion with the village elders and the local assistant chief attributed

the weakening of the customary tenure system to the socio-economic changes taking place in the

settlement.


53

Public land, under government ownership accounts for less than 1 percent of property in Manyatta ‘A’.

This comprises of four major markets, a community hall and two primary schools in the area.

The next sub-sections take an incisive look at the customary and neo-customary land markets and their

operation.

6.3.1. Customary land markets

As shown above, customary actors accounted for 29 percent, 27 percent and 14 percent of the land market

in Nyamasaria, Nyalenda ‘B’ and Manyatta ‘A’ settlements respectively. However, it is very likely that

these may not have been market transactions in the real sense; because traditionally land transactions of all

sorts were strictly controlled. According to the older community members interviewed, “Ancestral land

was usually sub-divided and shared amongst sons from generation to generation. Land was the most

important asset; land supported a wide network of kinship relationships and functioned as a status symbol.

Selling it was considered equivalent to selling one’s life.”

The colonial and post-colonial period, however, severely distorted the local checks and balances and

accountability structures of the customary tenure system. Gradually, land sales gained prominence with the

approval of the clan. The buyer’s identity would be most important in the decision to allow a sale, as

outsiders in particular were typically forbidden or at least frowned upon. This partly explains why at first

most sales were to close family relatives.

The expansion of Kisumu’s urban area and growth of peri-urban areas over time, has transformed what

were initially customary-owned agricultural farms into peri-urban residential areas. According to the

younger community members interviewed, “The little effective customary control over land sales has been

diminishing. Nowadays, a buyer’s origin is of little importance. Besides, selling land to outsiders brought

development and availability of social services in the area.” This difference of mindset reflects the gradual

decline over time in the extent to which customary norms govern land transactions.

The study findings revealed that, the sale of customary land was motivated by emergency situations

(distress sales), such as: (a) payment for children’s education; (b) meeting unexpected medical expenses in

the absence of alternative income sources; and (c) family land disputes. Market forces, rather than social

considerations usually determined the selling price in transactions involving outsiders.

6.3.2. Neo-customary land markets

In the case study areas, neo-customary land markets usually operate within a monetary and commercial

framework; which was totally foreign to the customary land norms. In principle, the land control board19;

19 Established by the Land Control Act (Cap 302); it stemmed from the desire to protect citizens from the potential threats of the system of formal land registration introduced by the colonial government. It was felt that formal legal rules should not be the only determinant of how the land market should operate. LCBs were expected to continue to uphold customary norms relating to land ownership where it was judged that they were appropriate.


54

which convenes in Kisumu city, must approve all proposed land market transactions within the former

agricultural land in the peri-urban areas before they can proceed. The board’s main purpose was to: (a)

regulate land sub-division and sales of agricultural land; (b) control fragmentation of agricultural land; and

(c) ensure that families are not left destitute as a result of land transfers. In practice however, this is not

always adhered to.

More often, an intending seller or buyer directly declares to a known confidant (for instance, relative,

friend, land agent) his/ her intention to sell or buy land. In either case the seller or buyer also declares: (a)

the land size; (b) location preferences; and (c) his offer. Information about land availability is by way of

mouth. Negotiations, site visits and preliminary price bargaining follow in that order. This findings

corroborate Kombe’s (1995) findings in his study of informal land markets operation in Dar es Salaam.

Apart from the land reference numbers issued during the land adjudication process, most customary

property owners do not have land titles or administrative authorisation from the respective land control

boards to transfer the land in question to the purchaser. In this case, a land sale agreement is issued; often

typed to make it more “official” and signed by the buyer and seller, the witnesses of both parties, and

authenticated by the local village elders and assistant chief. Once the buyer has acquired the land sale

agreement, he or she may proceed to occupy and use the land for development or present the agreement to

the land control board for obtaining a title. Figure 6-3 illustrates this process.

Figure 6-3: Neo-customary land market transaction process Source: Compiled from focus group discussions and key informant interviews

Intending seller

Intending buyer

Known* confidant

Prior negotiations (Land size| location| price offer)

Site visits and further negotiations

Preparation of land sale agreement documenting: (a) names, signatures and identification numbers of buyer and seller; (b) price paid and mode of payment; land reference number; (c) names and signatures of witnesses; and (d) date of transaction

Authentication by the local village elders and assistant chief

Consent to sub-divide and transfer land by the land control board for the municipality

Known* confidant

Known* confidant

Buyer occupies and uses the land for development

Buyer presents the agreement to the land control board for obtaining a title


55

Table 6-3 summarizes actors and roles they played in the informal land market chain.

Table 6-3: Actors and roles played in the informal land market Actors Roles/ motivation Customary property

owners • Land suppliers (distress sales)

Land buyers (land

speculators)

• Buy undeveloped customary land and hold it without making improvements,

hoping to resale it at a much higher price in future

• Desire to own land

Land agents/ brokers • Source and keep records of land available for sale at a commission

• Acts as one of the witnesses where a deal is concluded

Village elders

• Acts as one of the witnesses where a deal is concluded for a fee (‘token of

appreciation’)

• Arbitration in case of land disputes

Assistant chief • Preparation of a letter of claim which authenticates (formalises) the new

ownership of land for a fee (‘token of appreciation’)

Neighbours • Witnesses to the land transactions

Land control board

• Approve all land market transactions within the former agricultural land in

the extended (peri-urban) municipal areas

• Processing of the land title deeds

Source: Compiled from focus group discussions and key informant interviews

6.3.3. Characteristics of the informal land markets

a) Ease of land access

On the basis of fieldwork, neo-customary actors provided the bulk of land in the case study areas. Table 6-

4 shows the time taken (in weeks) to conclude a land transaction (from land seeking to actual land

occupation) by property owners who had acquired land through the neo-customary actors. The length of

time taken to acquire land in the case study areas is determined by: (a) the price of land; (b) the mode of

payment; and (c) other factors such as land disputes and land availability. Thus, it took less time to acquire

land in Nyamasaria (2.4 weeks) than

Nyalenda ‘B’ (3.6 weeks) and Manyatta ‘A’

(3.7 weeks).

Table 6-4: Time taken (weeks) to conclude land transactions

Source: Compiled from the household survey To ascertain whether the time taken in weeks to conclude land transactions (dependent variable) differs

significantly between the case study areas (independent variables), a one way independent ANOVA test

would be beneficial.

Nyamasaria (n=8)



Mean 2.38 3.56 3.7 Std. dev. 1.302 1.723 1.418


56

Descriptives

length of land acquisition (weeks)

8 2.38 1.302 .460 1.29 3.46 1 418 3.56 1.723 .406 2.70 4.41 1 620 3.70 1.418 .317 3.04 4.36 1 646 3.41 1.572 .232 2.95 3.88 1 6

NyamasariaNyalenda_BManyatta_ATotal

N Mean Std. Deviation Std. Error Lower Bound Upper Bound

95% Confidence Interval forMean

Minimum Maximum

Test of Homogeneity of Variances


1.326 2 43 .276

LeveneStatistic df1 df2 Sig.

Null hypothesis H0: there is no significant difference between the land transaction times for the case study areas.

(µ1 =µ2 = µ3) and Alternative hypothesis H1: there is a significant difference between the land transaction times

for the case study areas. (µ1 ≠µ2 ≠ µ3)

Where µ1 = population mean for Nyamasaria; µ2 = population mean for Nyalenda ‘B’; and µ3 =

population mean for Manyatta ‘A’

α = .05

*If these bars overlap, then we don’t expect

to find significant differences in land

transaction time (because it indicates that the

population mean across samples are likely to

lie within the same limits).

For this data Levene’s test has come out as highly insignificant (because pc = .276 which is greater than pα =

.05). The assumption of homogeneity of variance has been broken. This indicates that there is no significant

difference in land acquisition times between the three case study areas (µ1 =µ2 = µ3).


57

ANOVA


10.633 2 5.316 2.274 .115100.519 43 2.338111.152 45

Between GroupsWithin GroupsTotal

Sum ofSquares df Mean Square F Sig.

Robust Tests of Equality of Means


2.886 2 20.684 .0782.448 2 34.917 .101

WelchBrown-Forsythe

Statistica df1 df2 Sig.

Asymptotically F distributed.a.

Multiple Comparisons

Dependent Variable: length of land acquisition (weeks)Bonferroni

-1.181 .650 .229 -2.80 .44-1.325 .640 .133 -2.92 .271.181 .650 .229 -.44 2.80-.144 .497 1.000 -1.38 1.091.325 .640 .133 -.27 2.92.144 .497 1.000 -1.09 1.38

(J) case study areaNyalenda_BManyatta_ANyamasariaManyatta_ANyamasariaNyalenda_B

(I) case study areaNyamasaria

Nyalenda_B

Manyatta_A

MeanDifference

(I-J) Std. Error Sig. Lower Bound Upper Bound95% Confidence Interval

There was no significant difference in land acquisition times in the case study areas; F (2, 43) = 2.274, p > .05.

However, we saw earlier that the assumption of homogeneity of variance was broken. Therefore we shall inspect

the Welch and Brown-Forsythe versions of the F-ratio. Both test statistics are still insignificant (the value of sig.

in the table is greater than .05). Therefore we can say that there is no significant difference in land acquisition

times in the case study areas.

Welch F-ratio; F (2, 20.684) = .078, p > .05

Brown-Forsythe F-ratio; F (2, 34.917) = .101, p > .05

However to find out where the differences between the three case study areas lie, further comparisons were

carried out using post hoc tests20. In this case Bonferroni’s test was employed. According to Field (2005) the test

has more statistical power when the number of comparisons is small. The results are as follows.

It is clear from these significance values that the groups in subsets have non-significant means as indicated by

values of sig. that are greater than .05. Thus we accept the null hypothesis H0: there is no significant difference

between the land transaction times for the case study areas. (µ1 =µ2 = µ3).

20 Post hoc tests are used if three or more means were compared


58

0 10 20 30 40 50 60 70

Land registration

Price negotiation

Site vists & inspection

Land seeking

Nyamasaria (incipient) Nyalenda 'B' (intermediate) Manyatta 'A' (consolidated)

Reportedly, securing land title deeds took much longer and depended on the ‘incentives’ one was willing to

offer. According to table 6-5, the

most difficult stage in the informal

land market transaction process

was the registration of the

property transaction at the district

land registrar. *analysis excludes beneficiaries of customary inherited land

Table 6-5: Difficult stages in the informal land market transaction Source: Compiled from the household survey

*analysis excludes beneficiaries of customary inherited land Figure 6-4: Difficult stages in the informal land market transaction Source: Compiled from the household survey b) Evidence of land ownership

In order to acquire his or her title deed, the respective property owner must proceed to the district land

registrar’s office in Kisumu, go through the necessary bureaucratic procedures, and pay a minimum fee of

Kshs. 30021. Concerning land titles, the district land registrar observed that: “most property owners don’t

take the issue seriously or they don’t value land titles and so very few have them. Land transactions are

concluded with written agreements recognised within the communities – but these are merely pieces of

paper, with no official recognition until they are registered in the district lands registry”.

The registration of title serves two purposes, namely: (a) to simplify, cheapen, and expedite the transfer of

land; and (b) to ensure that the land register is conclusive. However, it was interesting to note that the land

register had not been significantly updated since originally being drawn up in the 1970s; and hence did not

reflect the numerous land transactions (sub-divisions) that had taken place over time.

21 Interview with district land registrar on 13/9/07

Nyamasaria (n=8)



Land registration 93.3 70 46.7 Price negotiation 0 16.7 3.3

Site visits & inspection 3.3 10 36.7 Land seeking 3.3 3.3 13.3

Total (%) 100 100 100


59

0 5 10 15 20 25 30




Title deed Land sale agreement No document

Most of those who had not collected their title deeds refer to the costs of doing so, as is evident in the

following remarks:

• “Most of the people here don’t have money because they don’t work therefore they cannot afford to

pay for the title deeds. You will be told to go here and there without knowing the reason.” –

Nyamasaria property owner.

• “The procedure is confusing and time consuming; to speed up, I had to make incentive payments to the

officials concerned – this greatly increased the land transaction costs.” – Nyalenda ‘B’ property

owner.

• “Long ago acquiring land title deed was very easy and cheap. But today things have changed. It’s

really a nightmare to get a land title deed. In most cases you are forced to bribe. We had to pay 3,000

shillings for three-quarters of an acre of land; don’t you see it is very expensive? My brother-in-law

only paid 300 shillings for his.” – Manyatta ‘A’ property owner.

From the household interviews conducted (Table 6-6), 33 percent of property owners in Nyamasaria had no

landownership documents. Property owners mostly derived security of landownership from actual

development and recognition through informal arrangements in this settlement. In Nyalenda ‘B’, 40

percent of property owners had land sale agreements as proof of ownership. Most property owners failed to

make follow-ups of their title deeds because they did not see the value in doing so. Many of those

interviewed criticized the high fees and complex procedures. Others simply admitted that they had no idea

what the fees and procedures were, nor had they bothered to find out. In Manyatta ‘A’, a large proportion

(67 percent) of the property owners had land title deeds as proof of land ownership. Most respondents were

well informed on the importance

of title deeds, although some still

found either the costs or

procedures involved burdensome.

Table 6-6: Evidence of land ownership Source: Compiled from the household survey

Figure 6-5: Evidence of land ownership Source: Compiled from the household survey

Nyamasaria (n=30)



Title deed 6.7 33.3 66.7 Land sale agreement 60 40 20

No document 33.3 26.7 13.3 Total (%) 100 100 100


60

0 5 10 15 20




Own savings

Credit cooperative loans

others (fund raising, retirement benefits)

c) Sources of finance

Finance for land purchase in all the case study areas is largely obtained from personal savings (86 percent).

Other categories of sources of finance are credit cooperative loans (accessible to those with land title

deeds) and other sources such as retirement benefits and fund raising. In all the study areas, payment for

land in cash instalments was

allowed. See, table 6-7.

*analysis excludes beneficiaries of customary inherited land Table 6-7: Sources of finance


*analysis excludes beneficiaries of customary inherited land Figure 6-6: Sources of finance Source: Compiled from the household survey


The findings reported in this chapter show that: (a) both formal and informal land markets operate in

Kisumu’s peri-urban area. The informal land market quite dominant and is less cumbersome. It takes about

two to four weeks to conclude a land transaction depending on the price, mode of payment, and land

availability; (b) informal land market transactions in the case study areas are highly decentralised and enjoy

local recognition and support as evidenced by the fact that most of the processes involved are undertaken

and finalised by the local actors.

The next chapter provides an insight into the impact of the customary tenure system on urban land

development processes.

Nyamasaria (n=8)



Own savings 87.5 77.8 89.5 Credit cooperative loans 12.5 11.1 10.5

Others 0 11.1 0 Total (%) 100 100 100


61

7. Impact of the customary tenure system on urban land development processes

For many people in the case study areas, customary land development norms form the lived reality whereas

the official land development norms are remote, strange, expensive and difficult to comply with. The

present section discusses two main aspects: (a) the nature and type of development carried out on land held

under customary tenure; and (b) the roles of traditional authorities in controlling and managing urban land

development.

7.1. Nature and type of development on land held under customary tenure

According to the Planning professionals22 interviewed; the enactment of the Physical Planning Act (Cap

286) as well as the Physical Planners Registration Act No. 3 of 1996, signified official recognition of the

importance of planning and provided the requisite legal framework for orderly planning of human

settlements – urban and rural - in Kenya. Other functions of the Acts included: (a) harmonisation of

planning procedures and requirements provided for in other pieces of legislation; (b) provision of the

necessary institutional framework for approval and regulation of the planning practice; (c) provision of a

framework for public participation in planning and plan implementation; and (d) provision of a legal

framework for protection of all planned public utilities countrywide.

“Before its introduction, the situation was rather chaotic...anybody could plan!”, as the professionals put

it. “Unfortunately, the Act is relatively new and has not been fully implemented. Often, plots have been

allocated without following planning procedures specified in the Act; at times using repealed Acts! - Such

as the Town Planning Act and the Land Planning Act. In addition, development applications have been

processed without the input of professional planners”.

Although sections 30 and 33 of the Physical Planning Act empowers local authorities to control the use and

development of land and buildings in the interest of proper and orderly development in their areas of

jurisdiction, land under customary and freehold interest makes planning and development control

extremely difficult and problematic. Olima and Obala (1998), argue that this happens because physical

planners have got no express authority to plan, guide and control all developments on such private lands.

They also note that, the proposals including land zoning and sub-divisions falling on such land are only

advisory and not committal. This increases the problems of land development in such pieces of land.

The study findings indicate that, when it comes to land development in peri-urban areas, the techniques and

procedures adopted by property owners often conflict, and are sometimes incompatible with the

government’s urban development policies. Thus, it’s not surprising that local authorities commonly hold

22 Comprising of planning professionals drawn from Maseno university and the private sector


62

the view that customary and freehold interest in land gravely inhibits orderly urban development due to the

following reasons:

a) Disregard of official land development procedures

The formal land development norms in Kenya, dictate that all new buildings, extensions and alterations on

existing buildings, repairs, or installation of any fittings and demolitions should be submitted to the

respective local authority for approval. The process ensures that buildings and structures conform to the

local authority by-laws.

The first and most important step towards this is that the property owner should be in possession of proper

ownership documents – the title deed – and ensure that there are provisions that allow for the proposed

development. The title deed may allow for the construction of a residential property but the owner actually

wanted to put up a commercial building or a building to accommodate social amenities such as a school or

a hospital. The change could also be from single dwelling units (low density) to multi-dwellings (high

density). Such changes are usually referred to as change of user.

Change of user legalises the construction of the proposed buildings and ensures provision of adequate

facilities. Such changes are usually necessitated by the change of population densities. For change of user,

to be undertaken, the property owner is required to submit a written application. Attachments required for

the change of user include: (a) a planning brief, prepared by a registered planner; (b) preliminary

architectural drawing plans (complete with all details including site plans, floor plans, elevations, and

sections), prepared by a registered architect; (c) survey plan; (d) a copy of the title deed; (e) a copy of the

land rates clearance certificate, indicating that all rates to the land have been paid (see, appendix 6-1). The

application is usually accompanied by a fee pre-determined by the area local authority and it often depends

on the total area of the proposed development. Figure 7-1 illustrates a sample change of user notice.

PHYSICAL PLANNING ACT Cap 286

Public Notice CHANGE OF USER

The owner of plot number L.R. NB/025 located in Nyalenda ‘B’ area of Kisumu intends to change the use of the plot

from AGRICULTURE to RESIDENTIAL subject to approval of the plans by the Municipal Council of Kisumu. Any

person or parties with objections regarding the proposal should forward their comments within 14 days from the date

of this notice stating the grounds on which such objections have been made to:

THE CLERK Municipal Council of Kisumu PO BOX 105 KISUMU Figure 7-1: Sample change of user notice Source: Municipal council of Kisumu, physical planning department


63

A technical team at the local authority then evaluates the submitted drawings with emphasis on the plot

coverage, plot frontage (in metres), plot areas (sizes), space allocated per dwelling (in metres squared),

drainage and sewerage, building lines, parking, way leaves, among other issues to ensure they meet the

local authority’s regulations and standards. Depending on the particulars of a given application, the local

authority is required to notify the applicant, within 30 days, whether or not the application has been

approved and award an approval letter duly signed by the director of planning. Usually the grounds of

disapproval are limited only to lack of sufficient drawings, improper ownership documents, over-density

and lack of change of user.

This situation however, does not hold true in view of the case study areas. The general agreement amongst

the municipal council of Kisumu officials is that despite the numerous plans prepared and approved by the

council, orderly development of the same in reality has remained a dream. The official procedures were

constantly evaded by private property owners because of: (a) high professional, surveying, architectural

and planning fees; (b) lengthy and costly bureaucracy in the submission and approval of building plans;

and (c) most of the property owners were woefully ignorant of the planning standards and administrative

procedures for urban areas.

One municipal planner, observed that, “There has been a downward trend in formally approved plans in

the peri-urban zone. Things are not done the way they should be done – property owners are contented

with shortcuts. In most cases, what happens is that as soon as a land purchase is made, the property owner

begins to develop the land. Soon after, the municipal council’s (development control) officials visit the site

with an order to stop the work. Thereafter the property owner visits the municipal council offices and pays

the required levies before resuming the development. Regrettably, many property owners continue to

develop their land without approval from the municipal council’s authority, occasionally easing official

confrontation with payment of bribes. It’s a nuisance trying to convince such property owners to

understand and appreciate the benefits that may accrue from planned land development.”

It is significant to note that under the existing planning legislation, unless an individual has a registered

title to his land, he cannot obtain approval to develop his land. The present study indicates that in practice,

a large proportion of sampled property owners did not acquire permission from the municipal council of

Kisumu before developing their land. Technically any development on their land is considered illegal.

Nevertheless, the type of buildings in these areas, are not generally different from those on official land

(see, figure 7-2). A number of property owners have put up expensive property; a clear reflection of the

similarity between planned areas and those areas under customary land tenure systems.


64

0% 20% 40% 60% 80% 100%




Approved Not approved

(a) A recently completed house in Manyatta ‘A’ (b) Building under construction in Nyalenda ‘B’

Figure 7-2: Nature and type of housing development in the case study areas Source: Field survey

Table 7-1 indicates the land development approval status in the case study areas. All sampled

developments in Nyamasaria had not been approved by the municipal authority. Given that this particular

settlement was still at the early stages of growth, respondents held the view that it was not the

government’s concern what they did with their land. The picture was different in Nyalenda ‘B’ and

Manyatta ‘A’. Respectively, 73 percent and 57 percent of the sampled respondents had not secured

development approvals, mainly due to

the inefficiency of the city planning

authorities and their inability to grant

permits in a timely way.

Table 7-1: Land development approval status


Figure 7-3: Land development approval status Source: Compiled from the household survey

Apart from the fees payable to the municipal council of Kisumu for development approval, property

owners were required to make annual payments referred as ‘land rent’, to the Ministry of lands through the

Kenya Revenue Authority. Both payments are made by all those who purchase land, whether from the

government, customary or other private sources. Figure 7-4, indicates the failure of property owners to pay

land rates is quite common. In fact the municipal council and the government loses a lot of revenue in this

manner.

Nyamasaria (n=30)



Approved 0 26.7 43.3 Not approved 100 73.3 56.7

Total (%) 100 100 100


ation Science and E

arth Observation

65

(a) Source: Daily N

ation, (Monday 10th Septem

ber 2007) (b) Source: D

aily Nation, (Sunday 16th Septem

ber 2007)

Figure 7-4: Land rent paym

ent notices


66

0% 20% 40% 60% 80% 100%




Urban Mixed Agricultural

b) Retarded development of infrastructural services and facilities

As the competition for land increases more customary land previously demarcated as agricultural land in

the peri-urban zone is being converted into urban land use (Table 7-2 and figure 7-5). In most cases this

results to land use conflicts

(incompatibility) between the planned

and new land uses.

*urban land use category includes residential, commercial, public purpose

**mixed land use category implies areas where urban agriculture takes place Table 7-2: Land use categories in the case study areas

Source: Compiled from the Pamoja Trust socio-economic survey

*urban land use category includes residential, commercial, public purpose **mixed land use category implies areas where urban agriculture takes place

Figure 7-5: Land use categories in the case study areas Source: Compiled from the Pamoja Trust socio-economic survey The dilemma that accompanies such urban expansion is that property owners usually commence with

informal sub-divisions prior to planning and servicing. This according to the municipal engineer “makes it

difficult, expensive and uneconomical for the local authority to extend services to such properties. Thus,

when in time infrastructure networks are installed, leap-frog development forces costs up for both existing

and future land sub-divisions, because trunk lines have to be extended through patches of undeveloped

land as well as installed in inadequate or non-existent rights of way.”

Table 7-3 shows the existing infrastructure on occupied land in the case study areas. In all the settlements,

water supply and electrification seem to be the easiest improvements. But, they only take place after

several years of occupation since people build incrementally, provided they have security of tenure in the

form of title deeds, land transfer documents (sale agreements) and recognition at the local level (Figure 7-

7). Most property owners estimate that by the time they complete their buildings, services would have been

provided

Nyamasaria (n=113)



Agricultural 65 21 0 Mixed 0 1302 47 Urban 48 2655 1044


67

84% 86% 88% 90% 92% 94% 96% 98% 100%




None Piped water Electricity

to the area by the municipal council.

The reality, however is that many

houses are left incomplete in peri-urban

areas because of the absence of

services (Figure 7-8).

Table 7-3: Existing infrastructure on occupied land Source: Compiled from the household survey

Figure 7-6: Existing infrastructure on occupied land Source: Compiled from the household survey

Figure 7-7: Incremental housing development in Manyatta 'A' Source: Field survey

Figure 7-8: An incomplete house in Nyalenda 'B' Source: Field survey

Water sources remain limited to a few communal water points and boreholes as indicated in figure 7-9.

Nyamasaria (n=30)



None 29 28 27 Piped water 1 1 2

Electricity 0 1 1 Total 30 30 30


68

(a) Communal water point in Manyatta ‘A’ (b) Residents buying water from a communal water

point in Nyalenda ‘B’

(c) A bore hole in Nyamasaria

Figure 7-9: Water sources in the case study areas Source: Field survey Low coverage and quality of infrastructure in turn negatively affects (reduces) the value of land. In

addition to the low level of serviced land, the location of Nyamasaria, Nyalenda ‘B’ and Manyatta ‘A’ is

also presenting some challenges. Often, people

settle in unsafe areas, such as flood-plains and

either relocate on their own when the land gets

flooded or are moved by the municipal council

(Figure 7-10). The same land however, may be

invaded again after the rains.

Figure 7-10: A house located on a flood plain in Manyatta 'A' Source: Field survey

1) Sizes of plots owned by households

As a guide, table 7-4 gives the recommended minimum plot sizes in the different cases of types of

residential development applicable in urban centres in Kenya.


69

Table 7-4: Recommended minimum plot sizes for different housing schemes Type of housing Detached (m2) Semi-detached (m2) Row housing (m2)

Slum rehabilitation and upgrading schemes 223.2 148.8 111.6

Low cost housing 334.8 223.2 167.4

Normal housing development 465 309.7 232.5

*minimum plot sizes determined by the user, type of waste disposal, availability of water, level of building technology and recommended plot coverage Source: Ministry of Lands (2005) Figure 7-11 shows the average household plot size distribution in the case study areas. The error bars

indicate that average household plot sizes in Nyamasaria (446 m2) are significantly larger in than in

Nyalenda ‘B’ (266 m2). The average household plot size in Manyatta ‘A’, on the other hand is 325 m2. It is

also evident that most of the plots in Nyalenda ‘B’ are below the minimum recommended plot size of 465

m2 for detached housing development.

This is partly attributed to the vibrant

informal land market transactions

taking place in this settlement. Land

sub-divisions have created intrinsically

small parcels, some of which can

hardly sustain a family unit. This

underscores why the municipal council

of Kisumu has been finding it difficult

to readily approve development plans

from Nyalenda ‘B’ and Manyatta ‘A’

because they usually do not conform to

the requirements set down in official

planning standards in a variety of ways

including the shape and size of land

parcels.

Figure 7-11: Average household plot size distribution Source: Compiled from the household survey

7.2. Roles of traditional authorities in urban land management

Table 7-5 indicates that customary authorities still play a significant role in wider land management aspects

in Nyamasaria (91 percent) and Nyalenda ‘B’ (65 percent). In Manyatta ‘A’, however, the role of

customary authorities is distantly recognized by local residents and public authorities. The focus group

discussants were clear that, “The settlement was no longer under the influence of customary authorities.

Individuals who bought land from customary property owners no longer operated within the parameters of

the customary system.”


70

0% 20% 40% 60% 80% 100%




Yes No

Moreover, the roles of customary authorities in Manyatta ‘A’ had been taken over officially by Community

development committees acting in partnership with the municipal council of Kisumu. These committees are

made up of various stakeholders, including

representatives from neo-customary actors.

They are responsible for policy decisions

such as settlement planning and development.

Table 7-5: Awareness of roles played by customary authorities in local land development Source: Compiled from the household survey

Figure 7-12: Awareness of roles played by customary authorities in local land development Source: Compiled from the household survey The respondents, who accepted the fact that customary authorities had a role to play in local land

development issues, offered a variety of explanations and justifications. The most cited reasons were that

customary authorities were involved in land transfers (mainly in terms of witnessing land sales), land

access, and land dispute resolution informally. Most of the land disputes in Nyalenda ‘B’ and Nyamasaria

arise out of land transactions and occupation not being properly registered unlike Manyatta ‘A’, where it

was reported that majority of the

land disputes were as a result of

double land sales by unscrupulous

land agents/ brokers. See, table 7-6.

*Not applicable represents the respondents who chose ‘No’, previously.

Table 7-6: Roles of customary authorities Source: Compiled from the household survey

Nyamasaria (n=30)



Yes 91 65 0 No 9 35 100

Total (%) 100 100 100

Nyamasaria (n=30)



Land access 35 20 0 Land transfer 30 25 0

Dispute resolution 26 20 0 Not applicable 9 35 100

Total (%) 100 100 100


71

0 20 40 60 80 100

Land access

Land transfer

Dispute resolution

Not applicable




*Not applicable represents the respondents who chose ‘No’, previously. Figure 7-13: Roles of customary authorities Source: Compiled from the household survey Community mobilization and local participation

It was also noted that, when it came to community mobilization and local participation; for instance

building of storm water drainage channels and ensuring that land developers did not block rights of way,

customary authorities in Nyamasaria settlement played a pivotal role. The strong social cohesion among the

residents formed an important factor that ensured compliance with community agreed land development

norms.

The picture is quite different in Nyalenda ‘B’ and Manyatta ‘A’. High levels of settlement density, have

acted as a stimulus for the weakening of the traditional land management institutions. Since most residents

in these settlements are drawn from the migrant communities, they are not much integrated in the local

community, and therefore participate less in community activities. A former customary leader lamented

that, “They had little say as far as land management was concerned; land matters were no longer in their

jurisdiction. Individual households operated independently as far as urban land use development was

concerned.”

Table 7-7 provides a summary of the institutions governing urban land management and development in

the study areas.

Table 7-7: Institutions governing urban land management and development in the study areas

Nyamasaria

(incipient)

Nyalenda ‘B’

(intermediate)

Manyatta ‘A’

(consolidated)

Customary tenure systems Mix of customary, neo-customary and

‘Individualistic’ tenure systems

Mix of neo-customary and

‘Individualistic’ tenure systems

Source: Based on focus group discussions and field observations


72


The foregoing analysis clearly reveals considerable weaknesses in the capacity of the state to intervene and

foster planned land development in peri-urban areas. Indeed, given the bureaucratic hurdles that have to be

overcome at each stage of the land development process, and the likelihood that considerable time will pass

before development approvals are finalised; it is not surprising that property owners in the case study areas

are developing their land outside official planning norms.

The findings also indicate that the role of traditional authorities in urban land management is especially

strong in the incipient phase of settlement development. However, the consolidation of settlements due to

demographic pressures and overheated land markets appears to curtail the efforts of traditional authorities’

in wider land management aspects such as encouraging community mobilization and local participation in

community development projects.


73

8. Summary of findings, conclusions and recommendations

The main objective of the present study was to investigate how the customary system of landholding in

Kisumu adapts and adjusts to the needs of rapid urbanization; as well as its opportunities and challenges to

the spatial planning of such areas. This section draws attention to the major findings of the empirical

component of this study in line with the objectives of the study; followed by conclusions and

recommendations.

8.1. Summary of research findings

a) Reflections on sub-objective 1

The first sub-objective sought to establish the nature and dynamics of customary landholding in the study

areas. The rationale behind this was to find out how customary land access and rights have evolved over

time under the pressure of market forces. The findings reveal that the customary tenure system in the case

study areas is not static but has adjusted and adapted itself over time through several stages; that is the

communal control stage, through to the family control stage, and lastly to the stage of individual titles and

land dealings, as depicted in figure 8-1.

The case study findings indicate a progressive shift from communal to individual landownership and

related rights to land; hence corroborating Payne’s (1997) view that with urban land markets rapidly

becoming more commercialized, land has a potential of being transformed from a resource with a use value

to a commodity with a market value.

Inte

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74

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held

in p

erpe

tuity

.

• St

rang

ers (

non-

indi

gene

s) li

mite

d to

use

right

s. Th

eir r

ight

s cou

ld n

ever

mat

eria

lize

into

ow

ners

hip

no m

atte

r how

long

he

had

used

and

occ

upie

d th

e la

nd

• U

nres

train

ed a

nd e

xclu

sive

righ

t of t

he

indi

vidu

al to

use

and

dis

pose

of t

he la

nd

man

ifest

ed in

seve

ral w

ays,

such

as:

(a) u

se

right

s, fo

r ins

tanc

e bu

ildin

g on

the

land

,

bury

ing

the

dead

, fel

ling

natu

ral t

rees

; (b)

trans

fer r

ight

s, th

at is

selli

ng th

e la

nd (o

r par

t

of it

) to

anot

her p

erso

n; a

nd (c

) exc

lusi

on

right

s, th

at is

kee

ping

any

one

else

from

the

land

in q

uest

ion.

Tem

pora

l

char

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rizat

ion

• Sl

ow

• V

arie

d •

Rap

id

Cas

e st

udy

area

•

---

• N

yam

asar

ia

• M

anya

tta ‘A

’ and

Nya

lend

a ‘B

’

*eac

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age

is n

ot n

eces

saril

y ex

clus

ive

of o

ther

stag

es. I

t is o

nly

the

dom

inan

t one

at a

giv

en ti

me

Figu

re 8

-1: T

he e

volu

tion

of c

usto

mar

y la

nd te

nure

in th

e ca

se st

udy

area

s So

urce

: Com

pile

d fr

om K

ey in

form

ant i

nter

view

s, in

-dep

th in

terv

iew

s and

focu

s gro

up d

iscu

ssio

ns

Com

mun

al c

ontro

l Fa

mily

con

trol

Indi

vidu

al ti

tles

and

land

dea

lings

Tim

e


75

b) Reflections on sub-objective 2

The second sub-objective sought to identify the existing land markets in peri-urban Kisumu. The rationale

behind this was to find out how customary property rights are made accessible and acquired within the

study areas. In order to achieve this, the structure and operation of the peri-urban land market was

examined. The study findings corroborate similar findings by other scholars (Kombe, 1995; Lupala, 2002;

Olima and Obala, 1998; Rakodi and Leduka, 2004), that: (a) both formal and informal land markets operate

in Kisumu’s peri-urban area. Shortcomings of the state land management mostly in regard to land

allocation have led to the development of informal land markets; (b) informal land market transactions in

the case study areas are highly decentralised and enjoy local recognition and support as evidenced by the

fact that most of the processes involved are undertaken and finalised by the local actors.

c) Reflections on sub-objective 3

The third sub-objective sought to determine the impact of the customary tenure system on land

development processes in the study areas. The rationale behind this was to find out how urban land

development proceeds on land held under customary tenure. In order to achieve this, two aspects were

examined: (a) the nature and type of development carried out on customary tenured land; and (b) the roles

of traditional authorities in controlling and managing urban land development.

In relation to the nature and type of development carried out on customary tenured land, the study findings

indicate: (a) the techniques and procedures adopted by property owners often conflict, and are sometimes

incompatible with the formal land development norms. The sequence of development follows what Baross

and van der Linden (1990) term as the OBSP (Occupation – Building- Servicing - Planning) model; (b)

Under the existing planning legislation, unless an individual has a registered title to his land, he cannot

obtain approval to develop his land. This then becomes a major hurdle since, most land transactions (land

sub-divisions) in the study areas are never registered at the district land registry as required by law. The

respective property owners mostly derived security of landownership from actual development and local

recognition in the respective settlements.

Technically speaking, any development on their land is considered illegal due to lack of approval from the

municipal council of Kisumu. Nevertheless, the type of buildings in these areas, are not generally different

from those on official land. Perhaps, a clear reflection of the confidence that the property owners have in

the customary land tenure system and also a general reflection of the similarity between planned areas and

those areas under the customary land tenure systems. Other transgressions were commonly found in the

areas of low coverage and quality of infrastructure; habitation of hazardous land and uneconomical

household land sizes.

In relation to the role traditional authorities in controlling and managing urban land use development, the

study findings indicate that customary authorities still play a significant role in wider land management

aspects such as encouraging community mobilization and local participation in community development

projects (for instance building of storm water drainage channels and ensuring that land developers did not


76

block rights of way). In Nyamasaria (incipient) and Nyalenda ‘B’ (intermediate) settlements, they were

also involved informally in land transfers (mainly in terms of witnessing land sales), land access, and land

dispute resolution. The picture was quite different in Manyatta ‘A’ (consolidated) settlement, where the

role of customary authorities was distantly recognized by local residents and public authorities. Community

development committees acting in partnership with the municipal council of Kisumu had officially taken

up the roles of customary authorities. These committees are made up of various stakeholders, including

representatives from neo-customary actors; who were responsible for policy decisions such as settlement

planning and development.

8.2. Conclusions

The motivation of the present study was two-fold: (a) to investigate how the customary system of

landholding in Kisumu adapts and adjusts to the needs of rapid urbanization; as well as (b) its opportunities

and challenges to the spatial planning of the peri-urban zone.

First, to comprehend how the customary landholding system adapts and adjusts to the needs of rapid

urbanization, the present study was guided by the expectation that: As urban development proceeds, the

informal institutions that govern land transactions and use change over time, vary between residential

areas and sometimes break down (Ikejiofor, 2006; Rakodi and Leduka, 2004). On the basis of the study

findings; one observes that as settlements consolidate and the density of development increases (due to the

pressures of the urban land markets and increased land demand), the ties between the customary authorities

and the urban population weakens considerably with time and may eventually breakdown. Thus the current

trend with regard to landholding in the case study areas was a gradual shift from community control to

individualisation.

Table 8-1, outlines the strengths and deficiencies exhibited by the customary land tenure system.

Table 8-1: SWOT summary of the customary tenure system Strengths Weaknesses

• Main source of land access adapted to the affordability of

potential buyers

• Resolution of land disputes

• Written evidence of land transactions

• The patriarchal nature denies women direct access to land

• Inefficient urban land patterns (inadequate infrastructure

provision, extensive leapfrog development, complex sub-

division layouts, uneconomical size of landholdings)

Opportunities Threats

• Community mobilization and local participation • Has a tendency of breeding tribalism, rivalry, suspicion and

tension between ethnic group; a situation which is adverse to

nation building

Taken as a whole, the results of this study show that the role of traditional authorities in urban land

management is especially strong in the incipient phase of settlement development. However, the

consolidation of settlements due to demographic pressures and overheated land markets has curtailed the

efforts of traditional authorities to intensify further urban land management.


77

Given the strengths and weaknesses inherent in both public and customary land management approaches,

the study concludes that there is a need to integrate both customary and public authority’s efforts towards

orderly urban development. The incipient phase of settlement development serves as a possible entry point

to such initiatives before settlement densities build up and the ensuing consequences - the lack of apparent

planning and sense of order - are often too ghastly to contemplate.

8.3. Recommendations

In view of the study findings and conclusions, the following measures regarding the management and

development of urban land are necessary:

• Past studies have clearly shown that the capacity of the state to intervene and foster planned land use

development has been declining year after another. Thus the study advocates for partnerships between

the municipal authority and neo-customary/ customary actors and where appropriate uses their

creativity in solving problems to adapt municipal by-laws and procedures.

• Planning policy should recognize the danger posed by peri-urban areas, the current practice of

confining development plans to urban areas should be discouraged. A comprehensive policy statement

for the development of these peri-urban areas is long overdue and should be effected soon to go hand

in hand with rapid urbanisation process in the country.


78

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82

Appendices

3-1: Key informant interview schedule

Dear participants, We are writing to ask for your help with an important and interesting study being conducted by the

International Institute for Geo-Information Science and Earth Observation, in the Netherlands.

Your valuable response will contribute to a better understanding of how the customary system of

landholding adapts and adjusts to the needs of rapid urbanization, as well as the opportunities and

challenges it presents on the spatial planning of Kisumu city.

We would like you to know that your efforts are very much appreciated. It is only with the responses of

individuals/ professionals like you, that knowledge in this field can be advanced. Please note that any

information that you provide will be treated as confidential and the findings will be reported in the

aggregate only, so that information provided about you/ your organisation cannot be ascertained or

deduced by the readers of the report.

Thank you very much for your kind assistance in this study. a) Nature and dynamics of customary landholding

• What is the extent of customary practices in the urban areas of Kisumu?

• How are the customary systems changing and adapting?

b) Existing peri-urban land markets in Kisumu

• What types of land access modes exist in Kisumu?

• What are the characteristics of these modes?

• How do they work/ operate?

• Who are the actors involved and what roles do they play?

c) Impacts of customary tenure on land use development processes

• What policies and procedures are in place to ensure compliance to orderly development in peri-

urban areas?

• What challenges/ obstacles do you face in ensuring compliance to such policies and procedures?

What measures should be put in place to address such challenges/ obstacles?

• Are techniques and procedures of customary land development compatible with local government

urban management policies?

• What is the relationship between public authorities and customary authorities? Are customary

authorities involved in land management and development issues?

• What are the potentials and constraints of the customary land tenure system as far as land

management and development is concerned?


83

3-2: In-depth interview schedule











Thank you very much for your kind assistance in this study Land agent based in Manyatta ‘A’

a) What roles do land brokers/ agents play in this settlement?

b) Has the number of persons seeking access to land through land agents been increasing or decreasing

over time?

c) How long would it take me to conclude a land transaction?

d) What costs are involved?

e) What factors are put into consideration when determining land prices?


84

3-3: Focus group discussion schedule











Thank you very much for your kind assistance in this study Village elders

a) When and how was this settlement established?

b) What are the main principles underlying traditional land management?

c) How have procedures used to acquire land been changing over time?

d) What are the causes of such changes?

e) What motives induce you to supply land to the land market?

f) Do you help in any way to initiate planning layouts prior to land development?

g) What other roles do you play as far as urban land management is concerned?

h) Are you happy with changes in land use development in this community?

i) What problems if any do you face?

j) What relations do you have with public authorities?

k) How can public authorities be made more responsive to the needs of the community?

l) What do you expect to be the status of customary land tenure system 10 years from now?


85

3-4: Property owner questionnaire











Thank you very much for your kind assistance in this study.

Interviewer’s Name Date Case Study Area Ref. No.

Section A: Land access (Tick the appropriate box)

1) Respondent’s name ……………………………

2) Gender Male Female

3) Land use?

Residential Commercial Residential/ Commercial

Religious Hospital/ Clinic Educational

Light industrial (Jua kali) other (specify)………………………

4) Mode of land acquisition/ access?

Traditional authorities (clan heads; village heads; family heads; lineage heads)

Government agencies (e.g. chiefs)

Non indigenous land sub-dividers/ speculators

Other (specify)……………………

5) What is the size of the land now? ……………………m2

6) Initial cost of purchase of land (Kshs)? ………………………………. Not applicable

7) What was the mode of payment?

Full payment (lump sum) Instalments Not applicable

8) How did you raise money to pay for this land?

Own savings Bank loan Loan from friends/ Relatives

Loan from credit cooperatives Other (specify) ……………………………

9) In which year was this land acquired?


86

Before 1963 1963 – 1978 1979 – 2002 2003 – To date

10) What was the development status of this plot at the time of acquisition? (land improvement)

Vacant Half built Built

11) What infrastructure/ services existed on this land at the time of acquisition?

Piped water Electricity Septic tank

Graded road None Other (specify)…………………

12) Why did you choose to acquire land in this area?

Plot availability

Cheaper land

Proximity to town/ workplace

Able to pay in instalments

Other (specify) ……………………………

Section B: Processes and actors involved in urban land development (Tick the appropriate box)

13) How did you know that this plot was being sold?( Not applicable for inherited land owners)

Assistant chief Village elder Relatives Land agent

Property owner Friend Other (specify) ……………………………

14) How long did the land acquisition process take (weeks)? ( Not applicable for inherited land owners)

One 2 – 4 5 – 12

13 – 24 25 – 52 Above 52

15) What was the most difficult stage during land transfer/ transaction?

Land seeking

Site visits and inspection

Price negotiation

Registration of plot sale at the land registrar’s office

16) What documentary proof did you get upon transfer to show that the property belongs to you?

Title deed land sale agreement No document

Other document (specify) ……………………………

17) Do the customary leaders have a role with regard to the land use development in this settlement?

Yes If yes, in what issues do you need their help?

Land access Land transfer other (specify) ……………………

No if no, why? ……………………

18) Has the current development been approved by the municipal council?

Yes (when)…………………………

No (why)…………………………

<< Once again, thank you very much for your participation in this study >>


87

4-1: Adjudication map of Kenya

Source: Department of Land adjudication and Settlement, Ministry of lands and settlement – Kisumu. At the time of conducting this study, the land adjudication and registration programme had been completed

in Central, Western and Nairobi provinces. Substantial amount of work still remains to be done in Nyanza,

Coast, Rift valley and Eastern provinces. The programme is yet to start in North eastern province.


88

4-2: Registry Index Maps (RIMs)

Manyatta ‘A’ RIM Part of diagram No. 25 Scale 1:1,500 (approx.)

Nyalenda ‘B’ RIM Part of diagram No. 1 Scale 1:2,500 (approx.) Nyamasaria RIM Part of diagram No. 13 Scale 1:2,500 (approx.)

Source: Survey Department, MoLS – Kisumu.


ation Science and E

arth Observation

89

4-3: Adjudication of custom

ary rights in former B

ritish territories – similarities and differences

Kenya

Zambia

Uganda

Similarities

Creation of adjudication areas and the appointm

ent of adjudication comm

ittees with w

hom the decision rests regarding applications for adjudication of land w

ithin the

area.

Conclusion of the proceedings is m

arked by the conversion of the old title into a new non-custom

ary one defined in western legal term

s.

The role of the local residents is institutionalised, and the adjudication is actually carried out by comm

ittees composed of villagers. These com

mittees are reinforced by the

supply of trained staff (for instance the Dem

arcation Officer, the Survey O

fficer, and the Recording O

fficer in Kenya).

Differences

In allocating the land after adjudication, the adjudication comm

ittee may m

ake adjustments to boundaries, for

purposes of providing access to any land, consolidating two or m

ore parcels, farm planning and facilitating

survey.

No such pow

er can be exercised under the Uganda

legislation.

Disputes settled by arbitration boards.

Disputes settled by the courts (sim

ilar to the adjudication legislation of former French territories).

Strong element of adm

inistrative control by central

government officials. The danger of this is that

comm

unity rights and interests may go by default.

- G

overnment officials sim

ply play a supervisory role.

The adjudication comm

ittee is appointed by the district

comm

issioner from am

ong local residents.

The Zambian law

provides for the nomination of the

adjudication comm

ittee by the superior native

authority of the area where the adjudication is situated.

The adjudication comm

ittee is elected by the adult

males of the parish, or of a sm

aller area which is

constituted into an adjudication area.

Source: Adapted from

Mifsud (1967)


90

6-1: Certificate of payment of rates and other charges

Source: Municipal council of Kisumu, Town Treasurer’s Department

Documents

The case of Kisumu city, Kenya - webapps.itc.utwente.nlsuccessive local authorities have shown an apparent weakness in controlling or guiding urban land use development; Property owners