¹ The history of European settlement in Kenya until 1915 has been fully dealt with by M. P. K. Sorrenson, Origins of European Settlement in Kenya, London.Nairobi, 1968, and much of this introductory section relies heavily on that work.

² Sorrenson, op. cit., 34–6.

³ Ibid., 37.

⁴ Elgin to Sadler, 17th July, 1906, Papers relating to British East Africa, H.L. 158 (1907), 43.

⁵ Sorrenson, op. cit., 167.

^{page 66 note 1} Elgin to Sadler, 19th March, 1908, Correspondence relating to the tenure of land in the East Africa Protectorate, Cd. 4117 (1908), 33.

^{page 66 note 2} Stewart to Lyttleton, 14th August, 1905, Papers relating to British East Africa, H.L. 158 (1907), 27.

^{page 66 note 3} I.e. the East Africa Land Regulations, 1897, and the Grown Lands Ordinance, 1902.

^{page 66 note 4} Sorrenson, op. cit., 173.

^{page 66 note 5} Crown Lands Ordinance, 1915, no. 12 of 1915, Cap. 140, Laws of Kenya, 1926, Revision, Part VIII. “Race” was defined as meaning “persons of European, Asiatic or African origin as the case may be”. Ibid., s. 5.

^{page 66 note 6} Ibid., s. 87 (c).

^{page 66 note 7} Ibid., s. 26.

^{page 66 note 8} Ibid., s. 39.

^{page 67 note 1} Indians in Kenya, Cmd. 1922 (1923). The White Paper is well-known for its emphasis on the paramountcy of native interests. As had been discovered during the debates on the Grown Lands Ordinance, 1915, part VIII, it was very convenient to be able to reject Indian demands under cover of protecting African interests.

^{page 67 note 2} Ibid., 17.

^{page 67 note 3} Ibid.

^{page 67 note 4} Cmd. 4556 (1934), sometimes known as the Garter Commission after its chairman, Sir Morris Carter.

^{page 67 note 5} S.R.O. 661, ss. 1, 4.

^{page 67 note 6} No. 21 of 1902.

^{page 67 note 7} Ibid., ss. 30, 31. This policy was continued by the Crown Lands Ordinance, 1915, s. 86.

^{page 68 note 1} See, e.g., Isaka Wainaina wa Gathomo and another v. Murito wa Indangara and others, Colony and Protectorate of Kenya, Law Reports, Vol. IX, part II (1923), 102, where it was held that natives in occupation of Crown land became tenants at will of the Crown.

^{page 68 note 2} E.g. the exclusion of part of the Lumbwa reserve for the settlement of ex-soldiers.

^{page 68 note 3} No. 9 of 1930.

^{page 68 note 4} Ibid., ss. 3 (i), 5 (1). The Central Board was composed of six official members and four unofficial members nominated by the Governor. The local Boards each consisted of the Provincial Commissioner, the District Commissioner, the Chief Native Commissioner, one European unofficial member and one African member.

^{page 68 note 5} Ibid., s. 2 (1).

^{page 68 note 6} Ibid., s. 7. Under the original Bill it would have been possible to grant leases of up to 99 years, but Lord Passfield insisted on an amendment reducing the maximum term to 33 years.

^{page 68 note 7} The earliest Kikuyu political organisations led the campaign for the return of the “stolen lands”. See M. P. K. Sorrenson, Land Reform in the Kikuyu Country, Nairobi, 1967, 21 ff.

^{page 68 note 8} Cmd. 4556 (1934), para, 2 (6).

^{page 68 note 9} The Commission used the word “Reserves” to denote those areas of Crown land which should be added to the native lands on the grounds of economic need. Ibid., para.2078.

^{page 68 note 10} Ibid., para. 1639.

^{page 69 note 1} Ibid., paras. 1693–5. The Board established under the Native Lands Trust Ordinance, 1930, provided a membership like that of the Executive Council; difficulties might well arise where there was a conflict of interests between occupants of the Native Lands and the government.

^{page 69 note 2} Ibid., para. 1854. The Commission justified its recommendation on the grounds that “…relations between the races were becoming embittered because of the extravagant pretensions of this tribe [the Kikuyu]”. Ibid., para. 1857.

^{page 69 note 3} Ibid., para. 2148.

^{page 69 note 4} Ibid., para. 2152.

^{page 69 note 5} Cmd. 4580 (1934). The British government rejected the proposal that the Lands Trust Board should be based in London, ibid., paras. 24–26.

^{page 69 note 6} Ibid., para. 9.

^{page 69 note 7} Ibid., para. 10.

^{page 69 note 8} Cmd. 4556 (1934), paras. 1941–5.

^{page 69 note 9} Papers relating to British East Africa, H.L. 158 (1907), 15.

^{page 69 note 10} Cmd. 4556 (1934), para. 1978.

^{page 70 note 1} See the Legislative Council Debates, 1929, vol. II, 20th December, 1929. Harvey Conway, the leader of the elected members, argued that the amendment put the natives above the law. Ibid., 820.

^{page 70 note 2} See M. R. Dilley, British Policy in Kenya Colony(Frank Cass, 1966), pp. 258–260.

^{page 70 note 3} Native Lands Trust Ordinance, 1930, s. 15 (2).

^{page 70 note 4} See p. 68 above.

^{page 70 note 5} Memorandum on Native Policy in East Africa, Cmd. 3573 (1930), 11. This memorandum generally obtained a very hostile reception among the European settlers in Kenya, largely because it attempted to work out the practical implications of the “paramountcy” doctrine enunciated in the 1923 White Paper, above, p. 67. See Dilley, op. cit., 195–208.

^{page 70 note 6} Lord Passfield's hostile attitude towards the settlers’ representatives in 1931 and his emphasis on the vagueness of the Elgin pledges, in particular with regard to the definition of the Highlands boundaries, may have undermined their sense of security. Joint Committee on Closer Union in East Africa, Minutes of Evidence, 1931, 780–2.

^{page 70 note 7} This fear was re-echoed in the debates on the Crown Lands (Amendment) Bill. Legislative Council Debates (1938), vol. IV (second series), 28th April, 1938, para. 115.

^{page 70 note 8} The main difference of opinion concerned the Leroghi plateau.

^{page 70 note 9} Cmd. 4556 (1934), para. 1978.

^{page 70 note 10} Legislative Council Debates, 1934, vol. II, 17th October, 1934, 537.

^{page 71 note 1} Ibid., 538.

^{page 71 note 2} CO. 533/453/38005, Scott to Byrne, April, 1935.

^{page 71 note 3} CO. 533/433/38005, minutes of discussion between Macdonald and Byrne, 30th July, 1935.

^{page 71 note 4} Cmd. 4556 (1934), para. 1979.

^{page 71 note 5} Ibid., para. 2152.

^{page 71 note 6} This points is discussed at p. 76 below.

^{page 71 note 7} Hansard, House of Commons, vol. 292, col. 653.

^{page 71 note 8} CO. 533/453/38005, Minutes of discussion between Macdonald and Byrne, 30th July, 1935.

^{page 72 note 1} In 1933 there were twenty official members and eighteen unofficial members (eleven Europeans, five Indians, one Arab and one member representing African interests); the following years saw a gradual increase in the number of members representing African interests.

^{page 72 note 2} See, e.g., CO. 533/462/38005/3, Federation of Indian Chambers of Commerce to Byrne, undated (probably November, 1935).

^{page 72 note 3} Only about 55 per cent of the occupied land in the European areas was developed. Agricultural Census, 1933, 6–7.

^{page 72 note 4} CO. 533/462/38005/3, Byrne to Thomas, 9th December, 1935.

^{page 72 note 5} Ibid., Schwartze to Plymouth, 6th March, 1936.

^{page 73 note 1} A Senior official at the Colonial Office stated, “… it is generally admitted that an Order in Council of some kind is the minimum that will satisfy the European settlers, and we owe a duty to the Europeans just as much, if not a great deal more than we owe to the Indians”. CO. 533/462, minute by Flood, dated 5th February, 1936, on Federation of Indian Chambers of Commerce to Byrne, undated (probably November, 1935).

^{page 73 note 2} CO. 533/462/38005/3, Byrne to Ormsby-Gore, 9th July, 1936.

^{page 73 note 3} There were to be two official members and five unofficial members of whom four would be elected by the European elected members of the Legislative Council and one would be nominated by the Governor.

^{page 73 note 4} Kenya (Highlands) Order in Council, 1939, s. 5. The functions of the Native Lands Trust Board were expressed in almost identical language; Kenya (Native Areas) Order in Council, 1939, s. 7 (1).

^{page 73 note 5} CO. 533/487/38005, 22nd January, 1938.

^{page 73 note 6} Legislative Council Debates (1938), vol. IV (second series), 28th April, 1938, paras. 113, 114.

^{page 73 note 7} Ibid., para. 122.

^{page 73 note 8} Hansard, House of Commons, vol. 331, col. 1051.

^{page 74 note 1} CO. 533/487/38005, minute by Paskin on Legislative Council Debates, 9th June, 1938.

^{page 74 note 2} When the Grown Lands (Amendment) Bill was at the committee stage, it was proposed to add a new section (s. 58 F) to the principal Ordinance providing that the Highlands should be subject to the protection and control of the Highlands Board. The government accepted this addition.

^{page 74 note 3} CO. 533/487/38005, Ormsby-Gore to Brooke-Popham, 18th March, 1938.

^{page 74 note 4} On 4th April, 1938, the Indian Council of State passed a resolution recommending the Governor-General in Council to take steps to prevent the issue of the Highlands Order in Council. CO. 533/488/38005.

^{page 74 note 5} T.S. 1911, Cmd. 5716, no. 15, art. 1.

^{page 74 note 6} T.S. 1919, Cmd. 477, no. 18, arts. 3, 4.

^{page 74 note 7} After stating that any expressly discriminatory statutory provision was out of the question both on account of the views of the Government of India and because it would infringe these two treaties, a Colonial Office official notes: “Unfortunately neither of these reasons is of such a character that it can be mentioned publicly…” C.O. 533/487/38005, minute by Paskin on Legislative Council Debates, 9th June, 1938.

^{page 75 note 1} S.R.O. 517. The Order was actually made on 2nd February, though this fact was kept secret. The Kenya (Native Areas) Order in Council, 1939, S.R.O. 516, was made and published on the same day.

^{page 75 note 2} CO. 533/502/38005, telegram from Macdonald to Brooke-Popham, 26th January, 1939.

^{page 75 note 3} CO. 533/488/38005, telegram from the Government of India to the Secretary of State for India, 11th January, 1939.

^{page 75 note 4} The Government of India added to the discomfiture of the Colonial Office by issuing a communiqué stating that it was “fully in sympathy with Indian opinion”. Daily Telegraph, 25th February, 1939.

^{page 75 note 5} Daily Telegraph, 6th May, 1939.

^{page 75 note 6} S. 5.

^{page 75 note 7} CO. 533/502/38005, Government of India to the India Office, 17th July, 1939.

^{page 75 note 8} CO. 533/502/38005, Pedler to Dawson (India Office), 26th August, 1939.

^{page 75 note 9} CO. 533/502/38005, minute by Pedler on letter (dated 31st September, 1939) from India Office to Colonial Office, 23rd September, 1939.

^{page 75 note 10} See, for example, the letter recommending the Government of India to send the most perfunctory reply to various letters from the East African Indian Congress, or, better still, not to send a reply at all in view of the time that had elapsed. CO. 533/516/38005, India Office to Government of India, 26th January, 1940.

^{page 76 note 1} No. 22 of 1944.

^{page 76 note 2} No. 23 of 1944.

^{page 76 note 3} East African Standard, 5th September, 1935.

^{page 76 note 4} CO. 533/462/38005/3, Harragin to Macdonald, 10th September, 1935.

^{page 76 note 5} Interpretation and General Clauses Ordinance, Cap. 1, Laws of Kenya, 1926, Revision, s. 2.

^{page 77 note 1} It is interesting to note that the High Court of Kenya has recently held that a company is a person for the purposes of the anti-discrimination provisions of the Kenya constitution, Simpson, J., stating that a company derives its racial status from the race of its shareholders. Devshi & Co. Ltd. v. Transport Licensing Board, [1971] E.A. 289.

^{page 77 note 2} CO. 533/462/38005/3, minute by Grossmith on letter (dated 25th March, 1936) from Byrne to Cunliffe-Lister, 15th May, 1936.

^{page 77 note 3} Report of the Settlement Committee (1939), para. 8.

^{page 77 note 4} Ibid., para. 25.

^{page 77 note 5} The history of the Land Control and Crown Lands (Amendment) Ordinances, 1944, is complicated and can only be presented in outline in the following pages. As this article is concerned with the Highlands policy, those provisions of the former Ordinance dealing with land development and the acquisition of land for settlement are not discussed here.

^{page 77 note 6} CO. 533/524/38005/3, Rennie to Moyne, 25th August, 1941. This problem had not been mentioned in the official correspondence since 1936.

^{page 78 note 1} N.B. it was no longer limited to agricultural land, but covered any land in the Highlands.

^{page 78 note 2} The possibility of using the Highlands Board to administer the policy of land control was never much discussed. Unofficial opinion favoured a board established by an Ordinance capable of local amendment. Moreover, the President of the Highlands Board at that time was very unpopular with the settlers, whereas, by virtue of the unofficial majority on the Land Control Board, they could elect a Chairman from their own number.

^{page 78 note 3} The Commissioner of Lands and Settlement, the Financial Secretary and the Director of Agriculture.

^{page 78 note 4} Equal treatment provisions in the recent treaty with China, T.S. 1943, Cmd. 6456, no. 2, might, it was feared, revive all the issues raised a few years previously in connection with the Convention of Saint Germain.

^{page 78 note 5} CO. 533/531/38576, Seal on draft Land Control Bill, undated (probably 22nd November, 1943).

^{page 79 note 1} CO. 533/531/38576, despatch from Stanley to Moore, 18th December, 1943.

^{page 79 note 2} Crown Lands (Amendment) Ordinance, 1944, s. 2, inserting sections 70A and 70B in the principal Ordinance. It was considerations of speed that led to this power being given to the Governor rather than the Governor in Council, as under s. 73 of the principal Ordinance.

^{page 79 note 3} Ibid., s. 3, inserting Part VIII A in the principal Ordinance.

^{page 79 note 4} Companies (Amendment) Ordinance, 1945, no. 39 of 1945, s. 3.

^{page 79 note 5} Land Control Ordinance, 1944, s. 8 (1).

^{page 79 note 6} They had hoped that the Governor would be required to act with the consent of the Highlands Board, but on this point they were not successful.

^{page 79 note 7} CO. 533/536/38576, Moore to Stanley, 25th February, 1944.

^{page 79 note 8} Land Control Ordinance, 1944, s. 8 (1) (a).

^{page 80 note 1} Legislative Council Debates (1944), vol. XVIII (second series), 12th April, 1944, para. 43.

^{page 80 note 2} Ibid., para. 14.

^{page 80 note 3} The Governor wrote that it would not have been “politically possible” to have postponed the second reading until the Colonial Office had had another look at it. CO. 533/536/38576, Moore to Stanley, 12th June, 1944.

^{page 80 note 4} In practice, of course, Indians were only prevented from acquiring agricultural land.

^{page 80 note 5} One Asian member of the Legislative Council described it as an “extension of the present objectionable practice of racial discrimination followed in respect of dealings in land situated in the Highlands to what are purely commercial transactions”. Report of the Select Committee of the Legislative Council on the Land Control BUI (1944), minority report by Amin.

^{page 80 note 6} CO. 533/536/38576, Indian Office to Colonial Office, 10th October, 1944. It is not clear whether, as this minute implies, the Bills were reserved for the signification of His Majesty's pleasure or whether the Governor had simply withheld his assent pending Colonial Office approval.

^{page 81 note 1} It should be remembered that the Board had other powers, notably in connection with the acquisition of land for settlement, which lie outside the scope of this article.

^{page 81 note 2} See, generally, Report by the Financial Commissioner (Lord Moyne) on Certain Questions in Kenya, Cmd. 4093 (1932). The Report recommended the introduction of Income Tax, a recommendation which, in spite of fierce European opposition, was eventually implemented in 1937.

^{page 81 note 3} E.g. the Anti-slavery and Aborigines’ Protection Society.

^{page 81 note 4} In 1931 Europeans in Kenya numbered 16, 812, Indians 39, 644 and natives (estimated) 2, 966, 993. Annual Report for Kenya Colony, 1931, 10, 13. In 1933 there were 2, 102 European settlers (not including their families), most of them in the Highlands. Agricultural Census, 1933, 33.

^{page 82 note 1} Report of the Land Tenure Committee, 1941. The Government's views on the Report were stated in Communique on Land Tenure Policy, 1951.

^{page 83 note 1} G. Bennett, “Settlers and Politics in Kenya” in History of East Africa, eds. V. Harlow and E. M. Chilver, Oxford, 1965, Vol. II, 299.

^{page 83 note 2} E. W. Mathu was appointed to the Legislative Council in 1944.

^{page 83 note 3} The Times, 26th July, 1946.

^{page 83 note 4} “We have got to find more land for Africans and I still hope that some of it will be made available by the Highlands Board, when bearings now running hot have cooled.” CO. 533/549/38232, Mitchell to Gator, 22nd March 1946.