Esese (1990) notes that in pre-colonial Kenya there were five main types of land; family land, communal land, bushland/forest, individual; family land was however the main indicator of land regime and customary laws regarding land. Family land among the Luhya was inherited from grandfather or father and passed down through the generations. In the case of a polygamous family, the sons inherited the lands cultivated by their mothers. If one of the wives did not have sons, then the step sons would inherit her land. If a mon dies without sons as heirs, his land was taken by his brothers or nephews. In the case when the man dies before his sons were married or ready enough to occupy the land, then the brothers would take care of the and until the sons were ready. The scenarios presented by Esese (1990) therefore indicate that there were no loopholes to allow the wives and daughters to own land. In Esese (2009), however, he presents a possible outlook that gave women within the Kabras subgroup of the Luhya some rights towards land. The Kabras customary laws allowed for the women some privileges beyond their usufructuary rights. They could therefore, solve disputes involving land boundaries and give testimonies in land court sessions. The new light shed on the women’s roles leaves a research gap on the transition of customary laws and its influence on women land ownership, use, and control.
Communal land were under the control of the council of elders
Ghai and MCauslam (1970)
The colonization of Kenya by the British presented a change of phase, leadership and laws regarding land and this presents a rsearch area on the specific changes and their impact on women land ownership. Ochieng (1972) and Dealing (1974) indicate that expeditions were sent against the Kabras as early as 1895. They were accused of having a translucent attitude towards the British. They were cowed by the overwhelming defeat of the Abanyala at the hands of the imperialist forces the elders of the Kabras arranged for a peaceful settlement. Were (1967) adds that Charles Hobley arrived in Mumias in 1895 following the difficulties by his predecessor to take a permanent administrative district of North Kavirondo. He was able to bring Mumias and other neighboring communities under control. These works helped the study understand the British occupation and colonialism of the Luhya region though it is not the key focus of the study.
Changes in Administration policies by the Birish further downgraded the pre-existing systems of village and clan elders who controlled land and tipped the ownership scale towards the men. Mutoro (1976) and Bode (1975) say the British started appointing chiefs and headmen thereby changing the customary practice of appointing of elders in the office of the headmen and the council of elders. This led to far-reaching changes in the land many African communities as the council of elders who presided over land matters were now replaced with the British appointed chiefs. The colonial government also established a new court system in 1913 under the auspices of the District Commissioner. The native tribunal courts took over the role of the elders in dispensing legal and judicial matters. The council of elders was therefore stripped of their power of making a decision concerning land in the region. The village elders and the council of elders lost their authority to the District Commissioner in land matters. The precolonial land structures were preserved but modified to serve the new capitalist system. A small number of individuals by 1935 had started selling off small portions of their land. The new law and administration centrally to the pre-colonial period legally recognized this process where members of one clan could not acquire land in another clan. The District commissioner made this illegally as he was empowered to nullify such transactions. These therefore indicate the beginning of the changes within the administrative policies that tickled down towards land ownership.