By James Odhiambo
In 2014, Hassan Mwavura believed he had secured his future. He had purchased two acres of ancestral land in Malomani, Kilifi County, with community witnesses and the area chief present. Soon after, government surveyors arrived to begin formal adjudication. His land was measured, and he received an allotment number – critical first step towards a title deed.
Eleven years later, Hassan is still waiting.
“They told me there are boundary issues and no funds,” he said. “But unless you pay a ‘facilitation’ fee, nothing moves. Not now, maybe never.”
Hassan’s limbo is not due to a lack of legal frameworks. Kenya’s Community Land Act (2016), under Section 20, clearly outlines a process for adjudication, including the recording of rights, identification of community claims, and dispute resolution. However, it does not specify any timeline within which disputes must be resolved – creating an open-ended process vulnerable to bureaucracy, politicisation, and neglect.
Legal experts argue this omission is critical. “Without a time cap, the adjudication process becomes a waiting game,” said lawyer Omar Elmawi. “And it’s often a game the poor can’t afford to play.”
In the Tsangalaweni Adjudication Section – where Hassan lives – hundreds of landowners are still without titles, despite the surveys being completed years ago. The delays stem from a small number of disputes, which remain unresolved indefinitely. However, the government policy is to withhold everyone’s deeds until every dispute in the entire section is resolved. The section is almost the size of a constituency, or half of a ward.
Nor is this an isolated issue. A 2021 global study on Fit-for-Purpose Land Administration (FFPLA), which examined 16 countries including Kenya, found that:
- 87.5% of implementing organisations faced major challenges during the mobilisation and boundary mapping phases.
- 75% struggled to document overlapping or communal rights, especially in customary systems.
- Fewer than 25% had structured methods for identifying and recording multiple rights on the same parcel – an issue particularly acute in areas like Kilifi where land is commonly used by extended families or communities.
The result, after 15 years of accelerated land reform, is that only 37% of Kenyan farmers have title deeds for their farms, and, for most, their grandchildren will still be in the same position in a century.
In this, Hassan’s case illustrates the structural failure that is driving this failure. When boundary disputes arise – as they often do in such communal settings – the adjudication process grinds to a halt. Hassan went to one baraza (village meeting) that was addressing distant neighbours’ challenges over boundaries. “The chief told the owners in dispute to resolve it themselves. That was seven years ago.”
The law does allow for local resolution, but without clear timelines or state-supported arbitration mechanisms, disputes are simply left unresolved. “The adjudication process, as it exists, is procedurally codified, but practically blind to rural tenure realities,” said Elmawi. “Landholding systems are layered, overlapping—and the law deletes those overlaps instead of documenting them.”
A 2021 study by Lengoiboni et al. emphasised this point: “The adjudication process modifies tenure arrangements. Traditional overlaps are deleted by individualised Western tenures.”
The FFPLA study also flagged other troubling patterns:
- All surveyed NGOs faced difficulties documenting women’s and pastoralists’ rights.
- Six said tenure recognition often hinged on who attended the barazas, excluding absent but rightful claimants.
- Most only displayed tenure claims for 15–30 days – far too short a time to address complex disputes that required months of negotiation, thus leaving them unresolved.
Meanwhile, the Ministry of Lands has cut its budget for community adjudication – by 17% between 2021 and 2023, prioritising urban infrastructure instead.
This inertia has real economic consequences. Without a title, Hassan cannot borrow money, invest in his farm, or defend his land against encroachment. “I till the land every season, but without a title, I can’t invest in irrigation. Banks won’t touch it,” he said.
Despite frameworks like FFPLA promoting flexible, community-based solutions, implementation on the ground remains rigid and exclusionary. “People lose rights not because they don’t exist – but because they aren’t documented,” the FFPLA study notes.
For Hassan and hundreds of thousands farmers like him, the absence of a dispute resolution framework and any legal deadline to resolve those disputes, the process remains permanently stalled. “Until the law sets a clock, the wait will never end,” said Hassan.