The Effect of Registration of Title Upon Customary Land Rights in Kenya

1978 ◽  
Vol 22 (2) ◽  
pp. 91-111 ◽  
Author(s):  
Simon Coldham

When the State of Emergency was declared in 1952, most Africans in Kenya were living on the land in tribal reserves known as Native Land Units. Land rights within the Land Units were governed by native law and custom, though the demand for individual titles was strong, particularly in the Kikuyu Land Unit. However, administrators were divided about the desirability of hastening the demise of traditional institutions and concentrated their efforts on promoting agricultural development by taking measures against soil erosion and encouraging farmers to consolidate their holdings. It was only when large-scale compulsory land consolidation schemes were initiated in the mid-fifties among the Kikuyu that serious consideration was given to the nature of the title which the owner of a consolidated holding would acquire. Many people saw customary law as an obstacle to agricultural development (after all, the customary law relating to the allocation and inheritance of land was largely responsible for the considerable fragmentation of holdings that had occurred) and recommended that it be replaced by a system based on the registration of individual titles.

Arena Hukum ◽  
2021 ◽  
Vol 14 (1) ◽  
pp. 150-166
Author(s):  
Ahmad Muddin ◽  
◽  
Hardianto Djanggih

Abstract This study aims to analyze dispute resolution, the dispute resolution approach that guarantees legal certainty and examine the factors that influence the construction of the settlement of land rights of the customary community of Malind-Amin. This normative and empirical legal research is analized descriptively and analytically. The results shows that the nature of customary land dispute with customary law can be resolved through positive legal mechanisms and customary law mechanisms, while dispute resolution on disputed objects that have certificates based on the release of traditional institutions through mediation, synchronization / harmonization of laws and the making of local regulations. However, efforts to resolve this have experienced various factors of internal and external obstacles.


2014 ◽  
Vol 7 (2) ◽  
Author(s):  
Liz Alden Wily

AbstractThis paper reflects upon the role of law in the contemporary surge in global large-scale land acquisitions. Its point of reference is the land security of several billion rural poor who traditionally own and use untitled lands that are classified as state lands or unowned public lands in national laws. Most of the affected lands are off-farm areas including forests, marshlands, and rangelands. Investors target these lands in belief they are unowned. Governments concur, selling or leasing these lands on grounds of being technically the lawful owner and despite awareness that these lands are occupied and used. Despite the longstanding nature of such conflicts as well known and long debated, the present land rush brings unresolved contradictions between statutory and customary law and associated meanings of property firmly to the fore. Using Sub-Saharan Africa as the example, this paper examines the legal effects. It is shown that while millions of local land rights are threatened, the land rush also vitalises demands for improved national law status for unregistered customary rights, including those such as forest and rangelands purposely held by communities in common. To this extent, the contemporary rush could prove as much legal friend as foe to majority land rights in agrarian economies. This is partly because the current rush, unlike those that have gone before it, occurs in an environment of advanced popular communication, emergent mass empowerment, and has the advantage of a pre-rush era of legal improvement in the handling of indigenous and customary land rights that has established alternative precedents. Opportunities to coerce modification of classical dispossessory paths of economic growth strongly exist. Global advocacy for secure community land rights is rapidly advancing.


1979 ◽  
Vol 17 (4) ◽  
pp. 615-627 ◽  
Author(s):  
Simon F. R. Coldham

Most Africans in Kenya have always lived and worked on the land, and until fairly recently their land-tenure arrangements have been governed by customary law. Colonial administrators were divided about the desirability of granting individual titles to African farmers, and concentrated their efforts on persuading them to plant cash-crops, to fight soil erosion and, where necessary, to consolidate their holdings. It was only in the mid-1950s, when large-scale compulsory land consolidation schemes were initiated in the Kikuyu Land Unit, that serious thought was given to the nature of the title which the owner of a consolidated holding would acquire.1 The East Africa Royal Commission advocated the adjudication and registration of individual titles in suitable areas,2 and eventually a working party was appointed to consider what legislation would be necessary to implement this recommendation. As a result of its report,3 a system of registration of title based on the English model was introduced. Once the processes of adjudicacation and consolidation have been completed, the title of the owner is registered and, where appropriate, any interests not amounting to ownership are also entered on the Land Register. The land thereupon ceases to be subject to customary law,4 and is governed instead by the complete code of substantive law – based broadly on English law – which is contained today in the Registered Land Act, 1963.


2020 ◽  
Vol 13 (1) ◽  
pp. 108-119
Author(s):  
Happy Trizna Wijaya

Since September 24, 1960 Law No. 5/1960 was stipulated regarding Basic Regulations on Agrarian Principles or often referred to as the Basic Agrarian Law (UUPA), adopting legal unification and based on customary law. Customary land law is original law, has a unique characteristic, where individual rights to land are personal rights but in it contain togetherness. Land controlled by customary law communities is known as ulayat rights. Although customary law is the basis of the LoGA, problems with ownership rights to customary land often occur due to unclear land boundaries and customary land tenure by the government without any release of land. The results of this study revealed that the procedure for controlling customary land by the local government through the mechanism of land acquisition as stipulated in Permendagri No. 15 of 1975 provides more opportunities for the Government to control land rights, while the owner / holder of land rights has a very weak position because many rights to land are neglected so that it violates the human rights of land rights holders. With the issuance of Presidential Decree No. 55 of 1993 concerning Land Procurement for the Implementation of Development for the Public Interest in lieu of Permendagri No. 15 of 1975, which provides a protection to holders of land rights to be able to defend their rights. This is also the case with Perpres No. 36 of 2005 Jo Perpres No. 65 of 2006 issued as a substitute for Presidential Decree No. 55 of 1993, far more provide protection to the community to defend their rights, while the government is increasingly limited in obtaining land. So Perpres No. 65 of 2006 provides a guarantee of legal certainty to holders of land rights to be able to defend their rights.Sejak 24 September 1960 ditetapkan Undang-undang Nomor 5 Tahun 1960 tentang Peraturan Dasar Pokok-pokok Agraria atau sering disebut Undang-undang Pokok Agraria (UUPA), menganut unifikasi hukum dan berdasarkan hukum adat. Hukum tanah adat merupakan hukum asli, mempunyai sifat yang khas, dimana hak-hak perorangan atas tanah merupakan hak pribadi akan tetapi didalamnya mengandung unsur kebersamaan. Tanah-tanah yang dikuasai oleh masyarakat hukum adat dikenal dengan sebutan hak ulayat. Walaupun hukum adat merupakan dasar dari UUPA tetapi permasalahan terhadap hak kepemilikan atas tanah adat seringkali terjadi karena penentuan batas tanah hak ulayat yang tidak jelas, maupun karena penguasaan hak atas tanah adat oleh pemerintah tanpa ada pelepasan tanah. Hasil penelitian ini mengungkapkan bahwa Prosedur penguasaan tanah ulayat oleh Pemda melalui mekanisme pembebasan tanah yang tertuang dalam Permendagri No. 15 Tahun 1975 lebih memberikan kesempatan kepada pihak Pemerintah untuk menguasai hak atas tanah, sedangkan pemilik/pemegang hak atas tanah mempunyai kedudukan yang sangat lemah karena banyak hak atas tanah yang diabaikan sehingga sangat melanggar hak asasi pemegang hak atas tanah. Dengan diterbitkannya Kepres No. 55 Tahun 1993 mengenai Pengadaan Tanah Bagi Pelaksanaan Pembangunan Untuk Kepentingan Umum sebagai pengganti Permendagri No. 15 Tahun 1975, yang memberikan suatu perlindungan kepada pemegang hak atas tanah untuk dapat mempertahankan haknya. Begitu juga halnya dengan Perpres No. 36 Tahun 2005 Jo Perpres No. 65 Tahun 2006 yang dikeluarkan sebagai pengganti Kepres No. 55 Tahun 1993, jauh lebih memberikan perlindungan kepada pihak masyarakat untuk membela haknya, sedangkan pihak pemerintah semakin terbatas dalam memperoleh tanah. Sehingga Perpres No. 65 Tahun 2006 memberikan suatu jaminan kepastian hukum kepada pemegang hak atas tanah untuk dapat mempertahankan haknya.


2017 ◽  
Vol 13 (25) ◽  
pp. 69-84
Author(s):  
Jhon A Mebri

Land has a very important meaning in human life, because most of human life depends on the land. There is a close correlation between man and the land and there is no human in this world who does not need the land. The land is not only understood as an economic resource, but for others it sees the land as sacred and one of the indigenous peoples of Papua must preserve. So with the government policy to allocate land for public interest often conflict with the interest of indigenous people of Papua. Related to the procurement of land is regulated in Law No. 2 of 2012 on Land Procurement for Development for Public Interest. The focus of this research is how to recognize and regulate land rights of indigenous and tribal peoples for the public interest in Papua and how are the legal effects on customary land rights for indigenous and tribal peoples in Papua? By using normative research methods it can be concluded that the recognition and regulation of indigenous peoples' rights to land as customary rights in accordance with the provisions of the Basic Agrarian Law, the Law on Special Autonomy and Law No. 6 of 2014 on Villages, is recognized Of its existence and use in accordance with applicable provisions in indigenous and tribal peoples. However, in practice it is often not in accordance with the provisions in force in Indonesia, so as not to provide justice and legal certainty.The legal consequences of customary law community land acquisition for public interest are the form of indemnity for indigenous and tribal peoples through the agreed mechanism and the transfer of land rights of customary law community to the government.


2020 ◽  
pp. 158-198
Author(s):  
M. A. Smirnova ◽  
A. P. Zhidkin ◽  
N. I. Lozbenev ◽  
E. A. Zazdravnykh ◽  
D. N. Kozlov

Soil degradation resulting from water erosion poses a serious threat to food and environmental security, therefore the research of soil erosion features and soil erosion mapping do not lose their relevance. The paper presents the results of large-scale digital mapping of the erosion degree of the arable soils in the Prokhorovsky district of the Belgorod region (85 thousand hectares), based on two approaches: (1) linking the factors of erosion-accumulative processes and the erosion degree of soil directly (factor -property model), and (2) due to imitation erosion model WaTEM/SEDEM (factor - process - property model). The inclusion of the process component into the digital soil mapping algorithm allows taking into account not only the spatial but also the temporal soil erosion features. It was revealed that the agricultural development of the Prokhorovsky district was primarily carried out on lands that are weakly prone to erosion, with the rate of erosion almost two times lower than on younger arable lands. As a result, the soil erosion maps, based on the factor - process - property model, with and without taking into account the duration of agricultural use, largely correspond to each other. Dominant soil categories (the map pixel corresponds to one soil taxa - noneroded and slightly eroded, medium, highly eroded), mapping by factor -property and factor - process - property models, have a high degree of correspondence to each other (prediction identity for 90% of pixels), while the soil combinations (the map pixel has information on the proportion of soils with different erosion degrees of soil) more significant (identity for less than 60% of pixels). The areas of zonal, erosion-zonal, and weakly eroded soil combinations differ 1.5-2 times, in the direction of a greater degree of soil erosion on the factor - process - property map.


1976 ◽  
Vol 20 (2) ◽  
pp. 107-126
Author(s):  
G. I. Emiko

This case, as will be seen from the facts, was between the Itsekiri2 tribe sub-tribe in Warri Division of the Midwestern State of Nigeria, who were plaintiffs, and the defendants, a family from another tribe in Eastern Urhobo Division of the Midwestern State who had founded a home in Okere,3 Warri. It was about the “ownership” of a piece or parcel of land in Okere. The plaintiffs claimed, inter alia, a declaration that in accordance with Itsekiri customary law the piece or parcel of land in dispute at Okere, Warri, was the property of the Ogitsi Family of Okere subject only to the overlordship of the Olu (King) of Warri, now vested in and exercisable by Itsekiri Communal Lands Trustees by virtue of the Communal Land Rights (Vesting in Trustees) Law, 1958, and the Warri Division (Itsekiri Communal Lands) Trust Instrument, 1959.


2019 ◽  
Vol 17 (2) ◽  
pp. 154
Author(s):  
Bayu Sagita

Abstract : In the process of buying and selling land as the basis for the transition of land rights from the seller to buyers in the area of Bolaang Mongondow, especially in Lolak Village District Lolak is done in two ways, namely the process of buying and selling as in general the sale and purchase of land ownership is a unity of land and buildings and plants above it and the process of buying and selling of land is not a unity between the land and buildings and plants above it or the sale and purchase by using the principle of separation horizontal is separate sale and purchase. However, in the development of the practice of the process of buying and selling land that is considered as part of the process of buying and selling property rights on customary land or customary law, it raises legal problems, the process of buying and selling property rights on land that can not provide legal protection of the status of property in full for the buyer in the land and enjoy the benefits and functions of the land itself.


2017 ◽  
pp. 154-166
Author(s):  
Bayu Sagita Damopolii Bayu Sagita Damopolii ◽  
Imam Koeswahyono Imam Koeswahyono ◽  
Moh. Fadli Moh. Fadli

In the process of buying and selling land as the basis for the transition of land rights from the seller to buyers in the area of Bolaang Mongondow, especially in Lolak Village District Lolak is done in two ways, namely the process of buying and selling as in general the sale and purchase of land ownership is a unity of land and buildings and plants above it and the process of buying and selling of land is not a unity between the land and buildings and plants above it or the sale and purchase by using the principle of separation horizontal is separate sale and purchase. However, in the development of the practice of the process of buying and selling land that is considered as part of the process of buying and selling property rights on customary land or customary law, it raises legal problems, the process of buying and selling property rights on land that can not provide legal protection of the status of property in full for the buyer in the land and enjoy the benefits and functions of the land itself.


SASI ◽  
2020 ◽  
Vol 26 (1) ◽  
pp. 111
Author(s):  
Desy Kosita Hallauw ◽  
Jenny Kristiana Matuankotta ◽  
Novyta Uktolseja

Relinquishment of land rights is the relinquishment of legal relations between the holders of land rights and the land under their control by providing compensation on the basis of deliberation. Letter of Waiver of rights is evidence that is made with the aim of releasing land rights. A letter of release of customary land rights (dati) is applied in the same way as the release of land rights in general, as enforced in accordance with Government Regulation No. 24 of 1997 concerning Land Registration. The process of registering customary land rights (dati) is based on the release of customary rights (dati) issued by the customary land owner (dati) as the basis for rights. So based on the release of land rights, it can be registered at the Ambon City Land Office to obtain proof of land ownership or certificates. The letter of release of customary land rights (dati) issued by the customary State Government in Ambon City is binding as long as it is carried out based on applicable customary law and can be proven the basis of ownership rights to customary land (dati) from the customary land owner (dati) that issues the release letter the land rights. However, as long as it cannot be proven valid, the letter of release of land rights does not have binding power, thus the release of the customary land rights (dati) becomes invalid and the certificate can be canceled.


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