The Law on Adverse Possession in Kenya
“In order to be entitled to land by Adverse Possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right without interruption for a period of 12 years either after dispossessing the owner or by discontinuation of possession by the owner on his own volition”. Kasuve Vs Mwaani Investments Limited & 4 others 1 KLR 184.
The phrase above may seem like a legal jargon; as it is not fathomable that somebody can get your land without you selling it by simply becoming “a squatter”.
Back in the day, there was an English common law concept known as seisin. This in simple language was possession of land by somebody who had title to it. The inverse of this, disseisin, is the possession of property by somebody who lacks title to it and claims title.
Such matters could be brought before the King through a legal action; assize of novel disseisin.
The Constitution of Kenya through article 40 as read with article 64 allows citizens to acquire and own property; land, through a freehold or a leasehold tenure. Article 65 on the other hand allows non-citizens to acquire and own property; land, through a leasehold tenure.
Nevertheless the doctrine of adverse possession also comes into the land regime. Whereby a land owner is not assured of lifetime possession in the event of abandoning the land for years or not removing squatters from the land. As such it is one of the ways of acquiring land in Kenya.
Under the Statute of limitations; Limitations of Actions Act Cap 22, legal underpinnings are laid bare. Below are some of the relevant underpinnings;
Section 7 states that
“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person”
Further in Section 13
“(1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as Adverse Possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in Adverse Possession on that date, a right of action does not accrue unless and until some person takes Adverse Possession of the land.
(2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in Adverse Possession, the right of action is no longer taken to have accrued, and a fresh right of action does not accrue unless and until some person again takes Adverse Possession of the land.
(3) For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12(3) of this Act, the land in reversion is taken to be Adverse Possession of the land”.
Section 16 provides as follows;
“For the purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of the estate of a deceased person is taken to claim as if there had been no interval of time between the death of the deceased person and the grant of the letters of administration.”
Section 17 goes on to state;
“Subject to section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished”.
Finally, Section 38(1) and (2) states;
“(1) Where a person claims to have become entitled by Adverse Possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.
(2) An order made under subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.
Interpretation of the Law.
In the case of MATE GITABI VS. JANE KABUBU MUGA & OTHERS (Nyeri Civil Appeal No. 43 of 2015 (unreported) the court held as follows;
“For one to succeed in a claim for adverse possession one must prove and demonstrate that he has occupied the land openly, that is without secrecy, without force, and without license or permission of the land owner, with the intention to have the land.
There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin maxim nec vi, nec clam, nec precario
Furthermore in the case of, DAVID MUNENE WAMWATI & 4 OTHERS VS THE REGISTERED TRUSTEES OF THE ANGLICAN CHURCH OF KENYA & ANOTHER (Nyeri Civil Appeal No. 36 of 2015 (unreported).
Due to the punitive nature of adverse possession against a land owner, a claim based on it cannot be affirmed unless certain elements are proven by the adverse possessor. This ensures that registered land owners will not arbitrarily lose their properties which they have worked hard for and sacrificed to acquire. Every limitation of actions, including adverse possession, does come with certain exceptions and extensions to ensure justice and fairness as far as possible
The combined effect of these sections is to extinguish the title of the proprietor of the land, in favour of the adverse possessor at the expiry of 12 years of occupation of the Adverse Possession on the suit land. So long as all the conditions have been met.
Be it that you are the adverse possessor or the land owner, it is imperative to know of the consequences of the 12 year time frame lapse as well as the massive evidentiary burden that will be required to prove your case.
It is then our recommendation that for land owners, fencing and continuous checking on your land is crucial. This is to ensure that squatters don’t get to stay in your property.
Inversely, adverse possession is intertwined with peaceful and open habitation. Your claim will then lose its significance if you occupied the land forcefully, secretly or with the permission of the owner.
When it comes to Land Law you can never be too cautious. Getting clarification and directions from experts is the only way of being on the right side of the law.