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The recognition by the Constitution that all land belongs to the people of Kenya and that such land can be held by the people as communities has sought to correct a historical fallacy that has existed in Kenya since the start of the colonial period. The Colonial Government, introduced laws and policies whose effect was to disregard communal approaches to land ownership and use and instead prefer private land tenure arrangements. The justification for this approach was both juridical and economic. The Juridical argument held that communities were not legal entities capable of holding property rights in land. From the economic standpoint, when land was vested in communities, so the fallacy went, the land would be mismanaged due to lack of sufficient control, since access in this instance was unregulated and open to everyone. The resultant situation was one of chaos and open access, what a famous scholar, Garett Hardin referred to as the Tragedy of the Commons.
