I fully agree with the adage which observes that law is made for man and not man for law! Often, when I help to unpack sectoral documents like the national land policy, the chapter on land in the constitution and the several recent pieces of land law to audiences, I always point out that the contents are dynamic. They aren’t static and must never be left to constrain us. They were formulated for our use in good faith and can impact either positively or negatively on implementation. What’s good on application must therefore be upheld and ring fenced for our routine use. But what impacts negatively must undergo appropriate reviews until it sits well on application. And in a number of cases, what works today may turn inappropriate with time. Then it must be reviewed too. This is why policies, constitutions and laws must always be treated as dynamic tools. They are meant to facilitate our lives and development.

Lately, we have observed a trend where public servants indicted on corruption charges are treated differently. Those in state parastatals and the mainstream civil service are suspended and moved out of office once charged in court on corruption. But those in constitutional commissions who have found themselves similarly charged have petitioned the same courts and been allowed to resume duty pending the hearing of their cases, a matter that smacks of inequality before the law. These public officers have managed to successfully move the court for resumption of office by invoking their security of tenure under the constitution. Apparently, they can only be vacated from office through the due process stipulated in chapter 15 of our constitution.

This requires that a petition be filed in parliament setting out the allegations against the petitioned constitutional or independent office holder, and if sustained by parliament, then the president subsequently suspends them and constitutes a tribunal to deal. Presumably, this rigour cushions these public officers from getting hounded out of such constitutional offices on flimsy or politically expedient grounds. But this process can be convoluted and long since it is subject to the parliamentary calendar and committee hearings. Yet, depending on the allegations against an officer, and viewed against the leadership and integrity criteria laid out in chapter six of the same constitution, a protracted process could undermine public interest.

Consensus on Chapter five of Kenya’s constitution on land and environment wasn’t easy to obtain. Harmonising inputs from stakeholders, many of whom were determined to ring-fence their self-serving, in some cases malevolent views called for careful navigation. Little wonder that the final debate in Parliament on the chapter was acrimonious. Ultimately, the chapter influenced the opinions of many Kenyans who voted in the 2010 referendum.

So how has implementation proceeded over the last ten years? For recollections, implementation cuts across the tenure of President Mwai Kibaki and, after his handing over in April 2013, President Uhuru Kenyatta. Some of the achievements made since include collapsing our previous raft of land laws, which were a problem to many, into just a few. These include the substantive Land and Community Land Acts. Registration of all interests in land is now done under the Land Registration Act, which repealed previous registration laws. The Environment and Land Court Act, an entirely new law, provided the framework for the new Environment and Land Courts, introduced to expedite hearings to the numerous land disputes. Stakeholders had pushed for the establishment of such special courts for quite long.

The National Land Commission Act was enacted to provide a framework for the recruitment of commissioners and officials of the land commission, and its operations. The Physical and Land Use Planning Act was also enacted to guide national, regional and county planning and land use, repealing the 1996 Physical Planning Act. Consequently, the sector is now driven by an institutional framework consisting of the Ministry of Lands and Physical Planning, the Land Commission and County governments. Land disputes are resolved by the new courts. Under the Community Land Act, it’s expected that Community Land Management Committees, charged with the duty of running the functions of a community and administering community land, will be put in place by the respective communities.

The Lands Ministry has given notice, through a proposed amendment to the Land Registration Act, that it wishes to have its public complaints office anchored in law. A special issue of the Kenya Gazette dated 23^rd March 2020 introduces an amendment Bill whose principal object is to establish an office of a Complaints Reviewer. The memorandum of objects and reasons for the Bill, forwarded through the Leader of Majority Party in Parliament Hon Aden Duale, provides that the office shall be responsible for providing a free, effective and impartial complaints review mechanism at the Lands Registry and Survey of Kenya. This complaints resolution mechanism will apply to complaints relating to land registration services under the Land Registration Act, and also to surveying services offered under the Survey Act. The amendment will occasion additional expenditure of public funds.

This Bill has got the industry talking. And this is healthy! Land Bills headed to Parliament call for serious attention, particularly by landowners, land professionals and business folk, as they often spell new ways of holding tenure rights or transacting business on land. As always, such bills will have two sides. So what are pundits threading from this Bill? One side posits that life in offices of the Lands Ministry has never been easy. Frustrations bedevil service seekers in land registries and survey offices as they are sent through faceless technical officers usually not available to listen and resolve their concerns. And when they talk, complainants are left overwhelmed with technical mumble for which they need interpretation. Yet, the legal consequences to their concerns could be dire.

So with time Ardhi House introduced a public complaints office as a friendlier intervention to help resolve routine complaints. The office has been in operation for many years; I recall discussing it in the Sunday Nation in 2011. It provided a good clearing hub for all manner of complaints including land invasions, double allocation, disenfranchisement by shrewd officers, dispossession of leases and land grabbing. And members of the public seemed quite happy with it, perhaps evidence that it fulfills some need.

Evictions are a rather difficult subject. They are informed by two very different schools of opinion! One is the inherent need for everyone to have a place for a home. And to feel secure thereon regardless of method of entry! The other is the need for those who own land to enjoy secure rights, without intrusion from unauthorized persons. The convergence is elusive. Tweeter posts on the matter during the recent Kariobangi evictions illustrate. “It’s inhuman to evict them”, one said. “Encroaching public land was, is and will ever remain a criminal offence”, countered another.

So why do evictions occur? Some genuinely landless people will move into any vacant land they find and occupy. First they stake out to see whether the owner would intervene. But with time, feeling confident that no one bothers, they build shelter and stay. Other groups are encouraged to move onto vacant public or private land by political investors keen to harvest their political vote at an opportune moment. There are also commercial squatters who target vacant land, private or public, for settlement then frustrate the legitimate owners to submission. They then subdivide and process informal sales to gullible buyers who eventually get evicted. Courts may also order evictions for a variety of reasons.

Undeveloped and unprotected public land has been the most easily encroached upon. Unoccupied private land has also been targeted for encroachment particularly at the Coast and in urban areas. The Athi River zone in Mavoko has also become a hotbed of systematic encroachments that at times morph into land invasions. Due to its vast nature, incidents of encroachment on community land can be hard to detect, but the owner communities are easily able to identify unauthorised settlers.

Our courts have lately been entering verdicts in support of adverse possession. Either they are getting bolder; else Kenyans are belatedly waking up to this legal opportunity. In March this year, a Malindi court upheld a prayer by some 240 squatters who sought to acquire land from a housing firm through adverse possession. And just recently, a widow lost a Ksh100 million worth piece of land in Mtwapa on account of adverse possession. A Mombasa court observed that the widow had failed to claim the property since it was acquired by her husband. The land had never been occupied or developed since it was purchased in 1972. Therefore, the original owner, who had remained in quiet possession all along, had acquired title to it by way of adverse possession. And just last week, the Court of Appeal ruled that public land cannot be acquired through adverse possession.

Adverse possession is one of the most painful ways of dispossession. Because no consideration of any kind is paid to the to the original land owner! Adverse possession has been part of our laws all along. But many land owners are totally unaware about it. And one can understand them. Landowners cannot be expected to be familiar with the myriad provisions in our land laws.

So what is adverse possession? A look through our Land Act will reveal that prescription is one of the ways through which one may acquire title to land in Kenya. As used in this context, prescription is the process of making a claim to land by long use and enjoyment. This without having had to use any force, or experiencing any interruption to the use from the owner. Our Limitation of Actions Act further provides specifics on timelines. Under this law, once a period of 12 years elapses without an action to recover the land, then the title of the registered owner stands extinguished by the operation of the law. This is why it is commonly referred to as acquisition of title by adverse possession. One simply sits on another’s land, continues to quietly enjoy its use, and through this adverse act, acquires legal title to it. Once the court is so moved and necessary evidence adduced, then the law obliges it to issue orders to have the original owner transfer title to the claimant.