[1938] EACA 209

## ORIGINAL CIVIL

#### BEFORE THACKER, J.

# STANLEY KAHAHU s/o WANGATI AND KOMOINDI, WAKAIYA AND THAIRO ALL SONS OF KINYANJUI, Plaintiffs

### (1) ANDEREA s/o WAIGANJO AND (2) THE HONOURABLE THE ATTORNEY GENERAL Defendants

#### Civ. Case No. 144/37

### Kenya Order in Council, 1921, Article 4 (1)—Jurisdiction of Supreme Court in suits relating to rights in land in native reserves -Native Tribunals Ordinance, 1930-Native Lands Trust Ordinance, 1930-Native Lands Trust (Amendment) Ordinance, 1934-Rights of natives in respect of land in native reserves.

Held (22-6-38).—(1) That the Supreme Court has jurisdiction in suits and matters relating to rights in land in native reserves.

(2) That members of a native tribe for whom land has been reserved by the Government under section 2 (1) of the Native Lands Trust Ordinance have a right of perpetual occupation subject to the power of the<br>Governor to grant land on lease or licence under section 8, to exclude land under sections 15 and 15A and to set apart under Part II. This right prevails as against the Crown and any person not belonging to the particular tribe. $\Lambda$

(3) That with regard to the rights of the members of a native tribe inter se the effect of the Native Tribunals Ordinance is to recognize in law any rights to land in a reserve which an occupier may have by native law and custom with the exception of the right to alienate such land otherwise than in accordance with the terms of the Native Lands Trust Ordinance, 1930. (Isaka Wainaina wa Gathomo and Gathomo v. Murito wa Indangara, Nanga wa Murito, Kabete and the Attorney General (9 E. A. L. R. 102), Kimani wa Kabato v. Kioi wa Nagi (8 E. A. L. R. 129) and Douglas Mwangi Wa Kaniotho, Macharia wa Buthia and Kiheria wa N'deri v. Chief<br>Mwichuki wa Kagwe and Attorney General (Civil Case No. 113/1925 unreported) considered.)

The plaintiffs and the first defendant were members of the Kikuyu tribe living in the Kiambu Native Reserve. The first plaintiff claimed a declaration (1) that he is solely entitled to three portions of land in that reserve or alternatively (2) to beneficial occupation, use and enjoyment of the same in his own right. The second plaintiffs were alleged to have sold these lands to the first plaintiff. The Attorney General was ordered to be joined as a defendant because on the decision of the case depended certain questions of public importance. $\cdot$

Slade for the plaintiffs.

Daly, $K. C.$ for the first defendant.

Phillips, Crown Counsel, for the second defendant.

JUDGMENT. The plaintiffs and the first defendant were members of the Kikuyu tribe living in the Kiambu Native Reserve. The first plaintiff claims a declaration (1) that he is solely entitled to three portions of land in that reserve or alternatively (2) to beneficial occupation, use and enjoyment of the same in his own right. The second plaintiffs are alleged to have sold these pieces of land to the suffirst plaintiff. The Attorney General on the application of the

defendant Anderea has been ordered by the Chief Justice to be joined as second defendant because on the decision of this case depend, I am given to understand, certain question of public importtance.

Two questions have been raised as preliminary points, on which my decision by consent of all parties is desired. They are of importance and of considerable difficulty also:-

- (1) Whether the Supreme Court has jurisdiction in suits and matters relating to alleged rights in land in Native Reserves; and - (2) Whether natives have any rights and if so, what rights in land in Native Reserves; in short whether there is a cause of action.

As to (1) it seems to be clear that there is, generally speaking, jurisdiction by virtue of Article 4 (1) of the Kenya Colony Order in Council 1921 which provides: "There shall be a Court of Record styled H. M. Supreme Court of Kenya with full jurisdiction civil and criminal over all persons and all matters in the Colony." By this Article it would seem that the Native Tribunal does not possess exclusive jurisdiction where the parties are natives. An action may be instituted in the Supreme Court by a native against another<br>native or the native may by way of the Native Tribunal and may subject to certain limitations reach the Supreme Court by way of case stated (see section 34 (4) Native Tribunals Ordinance, 1930): -

In giving my decision that this Supreme Court has jurisdiction I wish it to be understood that I am not dealing now with the issue of res judicata raised in the pleadings, which if proved might well put an end to these particular proceedings.

With regard to (2) Sir Jacob Barth, C. J., in Isaka Wainaina wa Gathomo and Kamau Gathomo v. (1) Murito was Indangara, (2) Nanga wa Murito, Kabete, and (3) The Attorney General (9 $\not\triangle$ . A. L. R. 102) decided that the effect of the Crown Lands Ordinance 1915 (Cap. 140 Laws of Kenya), the Kenya (Annexation) Order in Council 1920 and the Kenya Order in Council 1921 was inter alia to vest land reserved for the use of a native tribe in the Crown and in consequence. all native rights in such reserved land whatever they were under the *githaka* system disappeared and natives in occupation of such Crown land became tenants at will of the Crown.

This judgment appears to have overruled the decision of Maxwell J. in Kimani wa Kabato v. Kioi wa Nagi (8 E. A. L. R. 129) which was to the effect that a member of the Kikuyu tribe can acquire and retain tracts of land within the reserve: and that such rights can be enforced by a suit for damages for trespass and/or for an injunction.

Sir Jacob Barth's judgment was followed by Stephens J. in Civil Case No. 113 of 1925, (1) Douglas Mwangi wa Kamotho, (2) Macharia wa Buthia, (3) Kitheria wa N'deri v. (1) Chief Mwichuki wa Kagwe, (2) The Attorney General, which also related to rights. of natives in the Kikuyu Native Reserve. Stephens J. held with what he describes as a certain degree of hesitancy that natives had no rights of occupancy in land in the native reserve but that probably they had a limited right to occupancy as against other members of the tribe so long as the tribe was allowed by the Crown to remain. on the land. Thus Sir Jacob Barth's decision has been, since it was given, the guiding authority on the second point and has been, so to speak, in force up to the present day.

Subsequently to that decision, two Ordinances have been enacted which have a bearing on the point. I am invited by the plaintiffs to say that these Ordinances have altered the law in this matter; and that in any event I ought not to follow Sir Jacob Barth's judgment. These two Ordinances are the Native Lands Trust Ordinance 1930<br>and the Native Tribunals Ordinance 1930. The former Ordinance repealed Part VI of the Crown Lands Ordinance, entitled "Reservation of Land for use by Native Tribes". This part constituted the legislative authority and machinery by which areas of Crown land were, where and when necessary, converted into native reserve, and by which such areas could be increased or decreased by Government as it deemed fit. Their reservation could also be cancelled. It also contained a provision which limited the rights in such land of the different tribes and members of such tribes.

To refer to its provisions in more detail, it conferred on the Governor-in-Council power to reserve from sale, lease or other disposal any Crown land which in his opinion was required for the use and support of the members of the native tribes of the Colony (section $54$ ).

The Governor-in-Council had power to cancel such reservation as to the whole or any part of the area which had been made the reserve for any particular tribe, if he considered that the tribe did not need it or the whole of it, subject to the approval of the Secretary of State (section 56).

He had power to exclude areas from native reserves which were required for public purposes (section 57) and to make rules for the control of land in such reserves (section 59). Such rules do not appear to have been made.

The limiting provision was contained in section 54 which read: "Such reservation shall not confer on any tribe or members of such tribe any right to alienate the land so reserved or any part thereof". The object of the legislature in inserting this provision was, it may be justifiably concluded, chiefly to prevent natives from alienating to non-natives land reserved for their use. The question of transfer by one member of a tribe to another member of that tribe, or indeed to a member of another tribe, was not I think so much in the mind of the legislature. The result was however that a member of say the Kikuyu tribe living on land reserved for his tribe in Kiambu District, by virture of this part of the Crown Lands Ordinance, had no right to alienate to anyone else, whether a Kikuyu or a native of another tribe or a European, any part of that area. This was in the main the foundation of the decision of Barth C. J. that such a native had no rights of any kind in land in his native reserve, except as a tenant at will of the Crown. The reasoning in the judgment I take to be this; that the effect of the Crown Lands Ordinance 1915 and the Kenya (Annexation) Order in Council, 1920, by which no private rights were reserved, and the Kenya Colony Order in Council 1921, was *inter alia* to vest land reserved for the use of a native tribe in the Crown. That, consequently, all native rights in such land, whatever they were among the Kikuyu tribe under the *githaka* system, disappeared; and natives in occupation of such Crown lands became tenants at will of the Crown. The githaka system, it would appear from the record of this case, was one under which by Kikuyu law and custom certain occupiers of land had certain rights in respect of occupation, cultivation and so on. Rights such as these according to Barth C. J.'s decision simply did not exist among members of a tribe, as attaching to one man as against another. Nevertheless they appear to have been recognized as a matter of practice if one may judge from the type of litigation which I understand has been going on for a number of years before the Native Tribunals, established and functioning as they have been under Government authority, as evidenced by the proceedings in Civil Case No. 133 of 1937, Stephano Wanye v. Mawji Patel and Others, of which proceedings this Court has judicial cognisance.

It is necessary now to examine the provisions of the Native Lands Trust Ordinance 1930 and of the Native Tribunals Ordinance 1930. Of the former the following provisions are relevant to the point at issue. By section 2 (1) those areas of Crown land which are described in Government Notice No. 394 of 1926 are declared to be native reserves and are reserved and set aside for the use and benefit of the native tribes of the Colony for ever.

By section 2 $(2)$ the Governor may reserve further areas of Crown land for the use and benefit of native tribes of the Colony as in his opinion may be required for their maintenance and support: such areas to be deemed native reserve. By section 15 $(3)$ any native dispossessed by the exclusion of any land from a native reserve shall be entitled to the use and occupation of land which may be added to the reserve and to compensation in money in respect of buildings or crops, of difference in value, if any, between the area excluded and the area added, and of disturbance or other loss or expense caused by such exclusion.

In Part II^$\star$ (section 25 *et seq*) which deals with setting apart land in native reserves for mineral development, and the procedure to be adopted for that end, there is reference (in sections 33 and 34) to private right-holders in such reserves, and to what is described as a recognizable form of private right-holding and again as a system of private right-holding. By section 15A, which empowers the Governor to exclude land temporarily from a reserve for a mining lease, in place of setting such land apart permanently under Part II, natives who are disturbed in occupation are entitled to compensation on the same basis as they are under section 33 and $34$ . A separate procedure is laid for assessing and awarding compensation in the case of natives who are considered to be private right-holders and those who are not. Both are entitled to compensation, but the former are to receive in addition to other compensation, a lump sum equivalent to the full agricultural value of the land plus 15 per cent. The inference to be drawn from these sections of the Ordinance and from the words I have quoted namely "recognizable form" and "system of private right-holding" would appear to be that the legislature has recognized native rights of occupancy of two kinds, those of a private right-holder and those of a mere occupier of land. If the inference should not be drawn and was not intended by the legisla-

\* See Native Lands Trust (Amendment) Ordinance, 1934.-Ed.

ture to be drawn, then the only conclusion I can come to on them is that they are meaningless. I can find no definition of a private right-holder.

The remaining provisions of the Native Lands Trust Ordinance need not be referred to here in detail; they are not strictly relevant to the point in issue. It suffices to say that their effect is to set up a body called the Central Board to control and administer matters relating to land in native reserves and to lay down conditions under which such land can be leased by the Crown or set apart. The effect of this Ordinance was shortly to provide in place of Part VI of the Crown Lands Ordinance new machinery by which the Crown could and did set apart reserves for native tribes in the Colony. The land in such reserves remains Crown land but it is reserved for ever for the use and occupation of the various tribes. It is still vested in the Crown but it is under the control and management of the Central Board, to be administered for the use and benefit of the different tribes.

So far then we have a judicial pronouncement which has not been set aside (Sir Jacob Barth's) that natives have no rights to land in native reserves, and at the same time an Ordinance which indicates that they have. To some extent therefore the legislature has definitely recognized native rights to land in native reserves. Exactly what they are has not been defined. That is the difficult question that faces us now.

In the Native Tribunals Ordinance 1930 the following sections are relevant: section 8 by which Native Tribunals have full jurisdiction over causes and matters in which the parties are natives; section 11 by which Native Tribunals have jurisdiction in regard to immovable property; section 13 by which the Tribunals are to administer native law and custom so far as not inconsistent with Orders in Council or other laws in force in the Colony, or as not repugnant to justice and morality; section 22 which enacts that the practice and procedure of Native Tribunals shall be regulated in accordance with native law and custom; section $34$ (4) by which there is an appeal in regard to inter alia matters relating to immovable property. These provisions lend further colour to the proposition that the legislature recognizes some right or rights to land on the part of natives in reserves.

If natives have such rights what are they? Members of a native tribe for whom land has been reserved by the Government under section 2 (1) of the Native Lands Trust Ordinance have a right of perpetual occupation, subject to the power of the Governor to grant land on lease or licence under section 8 to exclude land under sections 15 and 15 $\lambda$ and to set apart under Part II. This right prevails as against the Crown and any person not belonging to the particular tribe.

Inter se have the members of a tribe any rights? Have any been conferred since the date of Sir Jacob Barth's judgment by the subsequent legislation?

The Native Lands Trust Ordinance, section 7, imposes a restriction on the disposal of land in a reserve in these words:—

"Notwithstanding anything in any other Ordinance contained, no land in any native reserve shall be leased or otherwise disposed of except under and in accordance with the provisions of this Ordinance and no lease or licence of or in respect of any such land shall be granted unless the Central Board is satisfied that ... etc." (then follow conditions).

The only cases where land may be disposed of under the Ordinance are: $-$

- (i) Under section 8 by which the Governor, with the consent of the Central Board, may grant leases and licences for various purposes; - (ii) Under section 15 by which land may be excluded for purposes by the Governor with the consent of the Central Board: - (iii) Under section $15A^*$ by which land may temporarily be excluded for mining leases; - (iv) Under section 25 et seq (Part II)^$\&$ by which land may be set apart for mining development.

The restriction in section 7 is not on all fours with the restriction already referred to (supra) contained in section 54 of the Crown Lands Ordinance. It is less definite and it appears to be intended primarily to restrict the alienation of land in a reserve to a party other than a member of the tribe.

At the same time it would appear to render invalid any transfer or lease of land in a reserve by one member of a tribe to another. This does not imply that the members of a tribe have no other rights to land inter se.

Thus we arrive at the conclusion that the effect of the Native Tribunals Ordinance is to recognize in law any rights to land which an occupier of land in 'a reserve may have by native law and custom, with the exception however, in view of section 7 of the Native Lands Trust Ordinance, of the right to alienate land otherwise than in accordance with the terms of that Ordinance.

In other words a native occupier in a reserve has whatever rights, other than those of alienation, are conferred by native law and custom (see Article 7 Kenya Colony Order in Council, 1921): -

"In all cases civil and criminal to which natives are parties, every Court $(a)$ shall be guided by native law so far as it is applicable and is not repugnant to justice and morality or inconsistent with any Order in Council or Ordinance, or any regulation or rule made under any Order in Council or Ordinance; and $(b)$ shall decide all such cases according to substantial justice without undue regard to technicalities or procedure and without undue delay".

Subject to the issue of res judicata raised in the pleadings, in other words whether an action may be commenced in this Court in its original jurisdiction after a suit has been commenced before and decided in the Native Tribunal, I therefore answer the two questions put before me for decision and hold first that this Court has jurisdiction in this case and secondly that there is a cause of action which may be tried by this Court, namely whether the plaintiff ought to have a declaration that he is entitled to beneficial occupation, subject to such rights as the Crown may have, of the three portions of land in dispute.

\* See Native Lands Trust (Amendment) Ordinance, 1934.-Ed.