Capacity building and legal harmonisation for Alternative Dispute Resolution practitioners in transitional land disputes; A Masai Community perspective
by admin on | 2026-01-08 09:02:33 Last Updated by admin on 2026-01-09 11:17:20
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Abstract
Transitional land disputes in Kenya’s pastoralist counties continue to escalate, fueling violence, displacement, and loss of life. This article analyses these conflicts through a mixed doctrinal and empirical methodology. The paper analyses statutory provisions Constitution of Kenya 2010, Community Land Act 2016, Land Registration Act 2012, reported case law including Kitili v Malusi (2023) eKLR, longitudinal conflict data from Kajiado and Narok counties, and the landmark Olkaria geothermal resettlement dispute as a primary case study. Findings reveal that purely customary mediation achieves unparalleled legitimacy yet collapses upon contact with formal land administration, whereas professionally driven mediation secures enforceability at the cost of community ownership. Article 159(2)(c) of the Constitution of Kenya 2010 elevates alternative dispute resolution to a foundational principle of justice, and section 41 of the Community Land Act 2016 expressly recognises customary mechanisms. Despite this supportive framework, such mechanisms remain constrained by limited statutory knowledge among traditional practitioners and challenges in integrating oral settlements into Kenya’s cadastral system. The article interrogates the enduring efficacy of the Maasai customary dispute-resolution mechanism known as Amitu or Entumoto, administered by councils of elders ilpayiani, and argues that sustainable resolution requires deliberate capacity building for these elders in statutory land law and registration procedures, combined with systematic legal harmonisation through hybrid mediation panels and fast-track registration protocols. Only this dual approach can transform Entumoto into a fully effective, constitutionally compliant tool for durable land justice in Maasai communities.
Introduction
For the Maasai, land is never merely soil; it is the living archive of ancestry and Maasai identity, the stage for cultural ceremonies, and the foundation of spiritual identity. Every grazing route, every salt lick, and every sacred Osinoni tree carries stories that span generations. Yet this indivisible bond between people and territory has come under unprecedented pressure. Historical dispossession during colonial times, post independence group-ranch subdivisions, large-scale conservation projects, and recent commercial agricultural and infrastructural developments have transformed many Maasai landscapes into zones of contestation.1 The result is a complex web of transitional land disputes that pit communities against the state, investors, and sometimes against one another.2 Kenya’s formal courts, despite constitutional reforms and the establishment of the Environment and Land Court, remain slow, expensive, and frequently perceived as culturally distant by pastoralist communities.3 The Judiciary\'s 2023 Performance Report notes an average 18-month backlog for land cases in ELC, deepening divisions.4 Litigation often deepens division rather than healing it. In response, both policy makers and affected communities have increasingly turned to Alternative Dispute Resolution (ADR), especially mediation, as a more accessible and relationship-preserving avenue.5 The Constitution of Kenya 2010 elevates ADR to a constitutional principle,6 while the Community Land Act 2016 explicitly recognises customary dispute resolution mechanisms.7 These legal developments signal opportunity, but opportunity alone is insufficient.8 Experience from Narok, Kajiado, Laikipia, and neighboring Tanzania reveals a persistent reality: mediated agreements frequently collapse or remain unenforceable because practitioners, whether traditional elders or accredited professionals lack adequate training, shared protocols, or clear pathways for integrating customary outcomes into the statutory system. The National Land Commission’s 2023/2024 Pastoralist Land Justice Report documented 214 violent incidents 2020–2024 directly linked to collapsed mediated agreements, with 40% involving Maasai sections read more...
