Court Case

Judgement of the High Court Of The East Africa Protectorate in the Case brought by the Masai Tribe against the Attorney General of the Protectorate and Others; Dated 26^th May, 1913.

Presented to both Hoses of Parliament by Command of His Majesty.
July 1913.
In His Majesty’s Court at Mombasa.
East Africa Protectorate

Civil Case No. 91 of 1912.

Ol le Njogo and 7 others…………..........……………..Plaintiffs,

The Honourable the Attorney-General and 20 others...Defendants.

JUDGEMENT

The action having been set down for argument on a preliminary point of law only on the issue of jurisdiction as raised on the pleadings by the Attorney-General, the only question that I have now to decide is whether the claims of the plaintiffs are recognisable by this court.

Mr. Home (Forester v. Secretary of State 1. A., 1872, p. 10; Musgrave v. Pulido, 5 App. Cases, p. 102) has argued on their behalf that it is not sufficient for the government merely to plead "Act of State," but that it is incumbent on the court to scrutinise those acts which are alleged to be Acts of State so as to be able to decide whether they in fact are or are not Acts of State, and that for this purpose it will be necessary to take evidence generally; and particularly, on the point of the alleged fiduciary relationship between the Secretary of State and the Masai tribe, he wishes to put in evidence speeches in the House of Commons.

I agree that the court must satisfy itself as to the real nature of the acts which are claimed to be Acts of State, but here all the facts relied on are fully set out by the defendants in the pleadings, so that, in my view, the court is in a position to form an opinion regarding their true nature without the necessity of taking evidence generally, or considering speeches in the House of Commons, which do not create legal obligations.

Now, for the contention of the government to succeed it must be shown on the facts pleaded that the acts of which the plaintiffs complain are really such Acts of State as are not cognisable by any municipal court. These facts are shortly as follows:-

In 1904 the then Commissioner of the Protectorate entered into an agreement with the Chief and certain representatives of the Masai tribe by which, inter alia, it was arranged that certain sections of the tribe should remove to a reserve at Laikipia. This removal took place and the tribe was consequently divided in two.

In 1911, the then Governor of the Protectorate entered into another agreement with the Chief, his regents, and certain representatives of that portion of the tribe living at Laikipia, by which it was arranged that the sections of the tribe which under the former agreement had removed to Laikipia should move south into one reserve with the remainder of the tribe.

Both of these agreements were made by the government acting on instructions from, and with the sanction of, the Secretary of State.

The Attorney-General contends that these agreements were in effect treaties while the plaintiffs prefer to call them agreements, though in their concise statement the 1904 agreement, on which they rely, is called by them a treaty. For the present I will call them agreements.

The material portions of these two agreements are as follows:

We, the Undersigned, being the Lybon and Chief (representatives) of the existing clans and sections of the Masai tribes in the East Africa Protectorate, having, this 9^th day of August, 1904, met Sir Donald Stewart, His Majesty’s Commissioner for the East Africa Protectorate, and discussed fully the question of a land settlement scheme for the Masai, have, of our own free will, decided that it is for our best interests to remove our people, flocks, and herds into definite reservations away from the railway line, and away from any land that may be thrown open to European settlement.

We have, after having already discussed the matter with Mr. Hobley at Naivasha, and Mr. Ainsworth at Nairobi, given this matter every consideration, and we recognize that the government, in taking up this question, are taking into consideration our best interests.

Now, we, being fully satisfied that the proposals for our removal to definite and final reserves are for the undoubted good of our race, have agreed as follows:-

That the Elburgu, Gekunuki, Loita, Damat, and Laitutok sections shall remove absolutely to Laikipia, and the boundaries of the settlement shall be, approximately, as follows:-

And by the removal of the foregoing sections to the reserve we undertake to vacate the whole of the Rift Valley, to be used by the government for purposes of European settlement. Further, that the Kaptei, Matapatu, Ndogalani, and Sigarari sections shall remove into the territory originally occupied by them to the south of Donyo Lamayu (Ngongo), and the Kisearian stream, and to comprise within the area the Donyo Lamuyu, Ndogalani, and Matapatu mountains, and the Donyo Narok, and to extend to Sosian on the west.

In addition to the foregoing, Lenana, as Chief Lybon, and his successors, to be allowed to occupy the land lying in between the Nbagathi and Kisearian streams from Donyo Lamuyu to the point where both streams meet, with the exception of land already occupied by Mr. Oulton, Mr. McQueen, and Mr. Paterson.

In addition to the foregoing, we asked that a right of road to include certain access to water be granted to us to allow of our keeping up communications between the two reserved areas, and further, that we be allowed to retain control of at least five square miles of land (at a point on the slopes of Kinangop to be pointed out by Legalishu and Masakondi), whereat we can carry out our circumcision rites and ceremonies in accordance with the custom of our ancestors.

We ask, as a most important point in this arrangement, that the government will establish and maintain a station on Laikipia, and that officers whom we know and trust may be appointed to look after us there.

Also that the government will pay reasonable compensation for any Masai cultivation at present existing near Nairobi.

In conclusion, we wish to state that we are quite satisfied with the foregoing arrangement, and we bind ourselves and our successors, as well as our people, to observe them.

We would, however, ask that the settlement now arrived at shall be enduring so long as the Masai as a race shall exist, and that European or other settlers shall not be allowed to take up land in the settlements.

In confirmation of this agreement, which has been read and fully explained to us, we hereby set our marks against our names as under:-

Lenana, son of Mbatian, Lybon of all the Masai.
Masakondi, son of Arariu, Lybon at Naivasha.

Signed at Nairobi, August 15^th, 1904:

Lemani, Elmura of Matapatu.
Leteregi, ditto.
Lelmurua, Leganan of Kapte.
Lakombe, Elmura of Kapte.
Limgiseng, Elmura of Ndogalani.
Lisiani, ditto.
Mepaku, Head Elmoran of Matapatu.
Lambari, Legation of Ndogalani.
Naivasha, representing Elburgu, Gekunuku, Loita, Damat, and Laitutok.
Legalishu, Leganan of Elburgu.
Olmugesa, ditto.
Olainomodo, ditto.
Olotogia, ditto.
Olieti, ditto.
Lanairugu, ditto.
Lingaldu, ditto.
Ginomun, ditto.
Liwala, Leganan of Gekunuki.
Lembogi, Leganan of Laitutok.

Signed at Nairobi, August 15th, 1904:
Sabori, Elmura. of Elburgu.

I, Donald Stewart, K.C.M.G., His Majesty’s Commissioner for the East Africa Protectorate, hereby agree to the foregoing, provided the Secretary of State approves of the agreement, and in witness thereof I have this 10th day of August, 1904, set my hand and seal.

We, the undersigned, being the Paramount Chief of all the Masai and his regents and the representatives of that portion of the Masai tribe living in the Northern Masai Reserve, as defined in the agreement entered into with the late Sir Donald William Stewart, Knight Commander of the Most Distinguished Order of Saint Michael and Saint George, his Majesty’s Commissioner for the East Africa Protectorate, on the ninth day of August, one thousand nine hundred and four, and more particularly set out in the proclamation of May thirtieth, one thousand nine hundred and six and published in the Official Gazette of June first, one thousand nine hundred and six, do hereby on our own behalf and on behalf of our people, whose representatives we are, being satisfied that it is to the best interest of their tribe that the Masai people should inhabit one area and should not be divided into two sections as must arise under the agreement aforesaid whereby there were reserved to the Masai tribe two separate and distinct areas of land, enter of our own free will into the following agreement with Sir Edouard Percy Cranwill Girouard, Knight Commander of the Most Distinguished Order of Saint Michael and Saint George, Member of the Distinguished Service Order, Governor and Commander in Chief of the East Africa Protectorate, hereinafter referred to as the Governor.

We agree to vacate at such time as the Governor may direct the Northern Masai Reserve which we have hitherto inhabited and occupied and -to remove by such routes as the Governor may notify to us, our people, herds, and flocks to such area on the south side of the Uganda Railway as the Governor may locate to us, the said area being bounded approximately as follows and as shown on the attached map.

Provided that nothing in this agreement contained shall be deemed to deprive the Masai tribe of the rights reserved to it under the agreement of August ninth, one thousand nine hundred and four, aforesaid, to the land on the slopes of Kinopop whereon the circumcision rights and ceremonies may be held.

In witness whereof and in confirmation of this agreement which has been fully explained to us we hereby set our marks against our names as under:-

Mark of Segi, son of Ol-onana (Lenana), Paramount Chief of all the Masai.
Mark of Ol-le-Gelesho (Legalishu), Regent during the minority of Segi, head of the Molelyan Clan, and chief spokesman (Ol-aigwenani) of the Il-Kitolp (Il-Merisho) age-grade of the Purko Masai.
Mark of Ngaroya, Regent during the minority of Segi, of the Aiser Clan.
Mark of Ol-le-Yeli, head of the Mokesen Clan of the Purko, Masai, and one of the spokesmen (Ol-aigwenani) of the Il-Kitoip (Il-Merisho) age-grade of the Purko, Masai.
Mark of Ol-le-Turere, head of the Mokesen Clan of the Purko Masai.
Mark of Ol-le-Malit, one of Masikondi’s representatives, of the Lughumae branch of the Aiser Clan of the Purko Masai.
Mark of Ol-le-Nakola, head of the Tarosero Clan of the Purko Masai
Mark of Ol-le-Naigisa, head of the Aiser Clan of the Purko Masai.
Mark of Marmaroi, uncle and personal attendant of Segi.
Mark of Saburi, the Prime Minister of the Late Chief Ol-onana (Lenana) and principal elder of the Southern Masai Reserve.
Mark of Agali, uncle of Segi, representing the Loita Masai.
Mark of Ol-le-Tanyai of the Tarosero, Clan, chief spokesman (Ol-aigwenani) of the Lemek (Meitaroni) age-grade of the Purko Masai.

The above set their marks to this agreement at Nairobi on the fourth day of April, nineteen hundred and eleven.

A. C. Hollis,
Secretary, Native Affairs.
Ol-le-Masikondi, head of the Lughumas section of the Aiser Clan; chief elder of the Purko Masai, called in the former treaty Ol Oiboni of the Purko Masai.
Ol-le-Batiet, head of Aiser Clan or the Purko Masai on Laikipia, (Ol-aigwenani) of the age [? age-grade] known as Il Merisho.
The above set their marks to this agreement at Rumuruti on the 13th day of April, nineteen hundred and eleven.
E. D. Browne,
Assistant District Commissioner, Laikipia.

In consideration of the above, I, Edouard Percy Cranwill Girouard, Knight Commander of the Most Distinguished Order of St. Michael and Saint George, Member of the Distinguished Service Order, Governor and Commander-in-Chief of the East Africa Protectorate, agree on behalf of His Majesty’s Government, but subject to the approval of His Majesty’s Principal Secretary of State for the Colonies, to reserve for the exclusive use of the Masai tribe the area on the south side of the Uganda Railway as defined above. . . . and to undertake on behalf of His Majesty’s Government to endeavour to remove all European settlers from the said areas and not to lease or grant any land within the said areas (except such land as may be required for mining purposes or for any public purpose) without the sanction of the Paramount Chief and the representatives of the Masai tribe.

In witness whereof I have hereunto set my hand and official sea] this twenty-sixth day of April, one thousand nine hundred and eleven.
Signed, sealed and delivered by the within-named Sir Edouard Percy Cranwill Girouard in the presence of :

A. C. Hollis.
E. P. C. GIROUARD.

The parties to the first agreement are "the Lybon and Chief (representatives) of the existing clans and sections of the Masai tribes in the East Africa Protectorate" and His Majesty’s Commissioner, acting under instructions from the Secretary of State.

The parties to the second agreement are "the Paramount Chief of all the Masai and his regents and the representatives of that portion of the Masai tribe living in the Northern Masai Reserve as defined in the former agreement," and the Governor, acting under instructions from the Secretary of State.

Now,. both these agreements were entered into by the representatives of the Crown in the East Africa Protectorate, in which the King exercises powers by virtue of the Foreign Jurisdiction Act, 1890, and for which with the advice of his Privy Council he ordered in 1902 that-

"The Commissioner shall administer the Government of East Africa in the name and on behalf of His Majesty, and shall do and execute in due manner all things that shall belong to his said command, and to the trust thereby reposed in him, according to the several powers and authorities granted or appointed to him by virtue of this Order and of his commission, and according to such instructions as may from time to time be given to him under His Majesty’s Sign Manual and Signet, or by Order of His Majesty in Council, or by His Majesty through a Secretary of State, and according to such laws as are or shall hereafter be in force in the Protectorate." (Order in Council 1902(3).)

The Commissioner therefore in 1904, and the Governor (with like powers) in 1911, were both consequently acting within their authority in entering into the agreements mentioned "on the instructions of His Majesty through a Secretary of State."

Now, the other parties to these agreements were persons whom the Commissioner and Governor, acting on behalf of the Crown, chose as representatives of the Masai tribe who with the Crown could enter into such agreements. The Masai tribe as living within the limits of the East Africa Protectorate are not subjects of the Crown, nor is East Africa British territory. But East Africa being a Protectorate in which the Crown has jurisdiction is in relation to the Crown a foreign country under its protection, and its native inhabitants are not subjects owing allegiance to the Crown but protected foreigners, who, in return for that protection, owe obedience.

For this view as to the status of a protectorate "which has never been acquired by settlement, or ceded to, or conquered, or annexed by His Majesty, or recognised by His Majesty as part of his dominions," and of the status of the native inhabitants thereof, 1 need only refer to the case of the King v. the Earl of Crewe (2 K. B., 1910, p. 577).

The real parties to these two agreements are therefore on one side the Crown, and on the other the Paramount Chief and leading representatives of a native tribe in a foreign country under the protection of the Crown.

The main matters which are the subject of the agreements are the areas which the protecting power of the country is to reserve for that tribe as apart and distinct from the subjects of the Crown living in the same country.

In my opinion there is here no legal contract as alleged between the Protectorate Government and the Masai signatories of the agreements, but the agreements are in fact treaties between the Crown and the representatives of the Masai, a foreign tribe living under its protection. I will now consider the plaintiffs’ claims and the acts of which they complain.

The plaintiffs claim as individuals and also on behalf of the Masai of Laikipia, and also on behalf of the Masai tribe generally, that the treaty made between the Masai and His Majesty’s late Commissioner, Sir Donald Stewart, in 1904, is still in force and effect, and that the obligations undertaken therein are still binding on His Majesty’s Government. The defendants Nos. 2-19 are brought on the record as signatories to the agreement made in 1911 whereby they agreed that they and the other Masai should leave Laikipia; these defendants having no authority to enter into such an agreement and such agreement being void except as regard the said defendants.

The first three plaintiffs and the other Masai of Laikipia have been and are being wrongfully removed from the Laikipia district in breach of the said agreement of 1904.

The plaintiffs therefore claim:

I. A declaration against the defendants Nos. 1, 20 and 21 that the plaintiff and the other Masai of Laikipia and the other members of the Masai tribe generally, with the exception of the defendants Nos. 2 to 19 inclusive, are still entitled to-

(a) The Laikipia district extended as aforesaid as equitable tenants in common in unbarable entail; and

(b) To an easement of road as aforesaid between the Northern and Southern Masai Reserves; and

(c) That the 1911 agreement is not binding on the plaintiffs and the other Masai of Laikipia and the other members of the Masai tribe generally with the exception of the defendants Nos. 2-19.

II To �5,000 damages against the 1^st defendant for failing to provide the road as agreed in the 1904 agreement; and

III To an inquiry as to damages against the 1^st, the 20^th, and 21^st defendants-

(a) arising from the death of stock occasioned by such stock being illegally removed from the Laikipia district;

(b) arising from the depreciation on the value of stock wrongfully removed from the said Laikipia district.

IV. All necessary accounts and inquiries and such further and other relief as the nature of the case may require.

V. As against the 20^th and 21^st defendants an injunction restraining them from preventing the return of the plaintiffs and their stock to the Laikipia district; and against them compelling any of the Laikipia Masai and their stock to move from the said Laikipia district.

VI. Costs.

The above reliefs with the exception of No. V are claimed against the Crown, and Nos. I, III and V also against the 20^th and 21^st defendants on the grounds that the government having by the 1904 agreement become trustees for the Masai, they failed to execute their trust, but entered into another agreement in 1911 contrary to the former one and derogatory to the interests of their castor qua trusts, and that the later agreement was obtained by duress, and is further not binding as it has not received the approval of the tribe, and that the losses they allege they have suffered are due to the government executing the terms of the second agreement in violation of the first, which still continued to exist.

Now, are the acts of defendants complained of by the plaintiffs Acts of State?

The answer to this is, in my opinion, contained in my finding that both the agreements are in fact treaties. For it follows from that finding that there was no such contractual relationship as alleged between the parties, and that in this action the plaintiffs are seeking by means of the court to enforce the provisions of a treaty. The Paramount Chief himself could not bring such an action, still less can his people (Feather v. Queen, 35 L. J. K. B., 208 and Buron v. Denman, 2 Excheq. 167).

As regards the plea of duress and the want of approval of the tribe to the second agreement, as affecting its validity, it is not within the competence of this court, having held the agreement to be a treaty, to consider its validity as affected either by the pourparlers before its signature or a want of authority on the part of the signatories.

As to the alleged losses incurred by the plaintiffs, they themselves plead that defendants 20 and 21 were the agents of the government acting in pursuance of the orders of the government or Secretary of State in carrying out the second agreement, which pleading is accepted by both of these defendants as their defence. Such an action as against them is founded on tort and will not lie, and their acts in carrying out the terms of a treaty having been on instructions from and adopted by the government are as much Acts of State as the treaty itself. Relief V claimed as against these defendants for similar reasons is not one that this court could grant as it would in its crudest form be an injunction to officers of the government to prevent them carrying out an Act of State.

The remaining defendants on the record are merely nominal as signatories to the 1911 agreement and no relief is claimed as against them.

I hold therefore on the issue before me that the acts of the defendants complained of by the plaintiffs are in fact Acts of State which are not cognisable by a municipal court.

The Crown, acting through its Commissioner, first made one treaty with the Masai, and subsequently acting through the Governor modified that treaty by another, and 1 cannot do better than adapt to the present case the concluding words of Lord Kingstown in giving judgement in the Privy Council in the case of Secretary of State for India v. K. B. Sahaba (XIII Moore 22): "It may have been just or unjust, politic or impolitic, beneficial or injurious, taken as a whole, to those whose interests are affected. These are considerations into which this court cannot enter. It is sufficient to say that even if a wrong has been done, it is a wrong for which no municipal court of justice can afford a remedy."

The action is dismissed with costs.

R. W. HAMILTON.
26 May, 1913.

Reprinted from East Africa Protectorate, Judgement of the High Court in the Case Brought by the Masai Tribe Against the Attorney General of the East Africa Protectorate and Others; dates 26th May, 1913, Command Paper No. 6939. Presented to Both Houses of Parliament by Command of His Majesty, July, 1913, House of Commons Parliamentary Papers, 1913 Volume LIV pp., 679-685.