The Problem With How Courts Are Reading Section 38
Kenya's Land Registration Act, No. 3 of 2012 ("the LRA") replaced the Registered Land Act, Cap. 300 (now repealed). Under Cap. 300, section 38 provided that a squatter who had been in open, continuous, and exclusive possession of registered land for twelve years could apply to be registered as proprietor. Courts treated that period as both necessary and largely sufficient, provided the claimant could show the relevant quality of possession.
Section 38 of the LRA replicates the twelve-year period but adds a significant new condition that courts are consistently downplaying. Section 38(1) states that a person who has been in adverse possession of registered land for at least twelve years "may" apply to the Registrar for registration in place of the registered proprietor. The word "may" has never been interpreted as importing discretion in the claimant, which is how some judgments treat it. More critically, the legislature added section 38(2), which requires the court to be satisfied that it is "just" to register the applicant.
The justice inquiry is independent of the period of possession. A claimant who satisfies twelve years of adverse possession still fails if the court concludes it is not just to deprive the registered proprietor of the title. Courts are routinely merging the two inquiries and treating satisfaction of the twelve-year period as automatically making registration just.
Why That Merger Is Wrong
The registered proprietor's right to property under Article 40 of the Constitution of Kenya 2010 is a constitutional right. Deprivation of that right must be justified under law, and the courts must bring proper scrutiny to that justification. Section 38(2) of the LRA is Parliament's mechanism for requiring courts to conduct that scrutiny. When a court treats twelve years of possession as conclusively establishing that registration is "just," it is abdicating that scrutiny.
The Court of Appeal addressed adverse possession in Kiambu Land Case No. 68 of 2018 (Environment and Land Court) and related matters, but the majority of ELC decisions still treat the justice inquiry as a rubber stamp. The correct approach requires the court to separately ask: given all the circumstances, including the nature of the registered proprietor's title, whether the registered proprietor abandoned the land, whether there are competing equities, and whether the applicant's possession was truly hostile or permissive, is it just to substitute one name for another on the register?
The Indefeasibility Problem
Section 26 of the LRA provides that a certificate of title is conclusive evidence that the person named is the absolute and indefeasible owner of the land, subject only to the overriding interests listed in the First Schedule. Adverse possession does not appear in the First Schedule as an overriding interest. Adverse possession is instead a freestanding statutory claim under section 38, not an overriding equity.
This means that a registered proprietor's title is not diminished merely because someone has been sitting on the land for twelve years. The proprietor retains full title until the court actually makes an order substituting the squatter. Courts that speak of a squatter "earning" title through occupation are using language that the LRA does not support.
The Result of Getting This Wrong
When courts conflate the twelve-year period with the justice requirement, they expose registered proprietors to title loss in cases where the equities do not support it: cases where an owner was imprisoned, hospitalised, or working abroad; cases where a relative permitted temporary occupation that hardened into a claim; cases where a boundary dispute was misunderstood as abandonment.
Section 38(2) exists precisely to filter those cases out. Courts should use it.