The main aim of this research is to investigate whether communal tenure changes differently when impacted by different land registration systems. The output of this research may help to develop more appropriate land registration systems for communal tenure. In most developing countries, implementation of formal land registration systems is struggling and most people continue to gain access to resources through communal tenure. According to current statistics, only about thirty percent of land in developing countries has been formally registered. Hence, a majority of the people cannot gain from the possible benefits of land registration.
The Republic of Kenya was selected as the main study area for this thesis, within which three case studies were chosen. Kenya was selected because it is a developing country in which colonial and post-independence governments extensively introduced three different land registration systems as a means of supplanting communal tenure. The three are: the individual, group ranch and Trust Land systems, within which the Luo, Maasai and Pokot people were selected, respectively, as a means of investigating changes in communal tenure.
Case study methodology was selected as the main form of inquiry within which a framework was developed for data collection and analysis. Among various reasons, case study methodology was selected because it is a form of inquiry that can be used to investigate a phenomenon that is not easy to separate from its surrounding, as is the case with communal tenure which is not easy to distinguish from aspects of formal land registration. In case study methodology, a framework was developed in which aspects of communal tenure were limited to factors that are contrary to exclusivity and the ability to sell land as prescribed by introduced land registration systems. Based on the framework, semi-structured interviews were conducted among the three selected tribes. Further, literature and evidence from court proceedings were collected as data for each of the case studies. Within-case and cross-case analysis was conducted to find out whether communal tenure has changed differently among the three tribes after being impacted by the different land registration systems.
The results show that from a general perspective, communal tenure has not changed differently towards the different land registration systems in Kenya. At a detailed level, there are differences across the three systems. However, the differences can be attributed more to the tribes being different as opposed to the systems. Thus, if the minor differences are ignored, a conclusion can be made that communal tenure has not changed differently towards the varied land registration systems. In essence, in each of the systems, some people have retained aspects of communal tenure while others have accepted exclusivity and, or, the ability to sell land.
In chapter seven, a paradigm shift is proposed as a means of developing more appropriate land registration systems for developing countries. The shift in thinking is that the concept of registering land owners over communal tenure should be abolished and replaced with registration of stewards or custodians. The concept of stewardship comes from an understanding that in communal tenure, individual rights are embedded within wider social obligations.||