Adverse Possession in Kenya

 

 1.0 Introduction

Adverse possession is a means by which someone may acquire title to the land of another person through certain acts over a defined period of time. In Kenya, the concept of adverse possession refers to a situation where a trespasser to land can claim property after the lapse of a determined period of 12 years.

 

Otherwise referred to as squatter’s rights is a well-founded doctrine in law that allows a person who has unlawfully occupied another person’s land for a continuous period of at least 12 years to legally apply for registration rights over the property.

 

The three main tests in an adverse possession claim are: (a) one must have occupied the land to the exclusion of others; (b) the occupation must be without the consent of the owner; and (c) the occupation must be for a continuous and uninterrupted period of at least twelve years. So to speak, adverse possession is seen as one of the doctrine that goes against the concept of indefeasibility of title as one is able to register their ownership rights against the proprietor’s title.

 

Adverse possession here in Kenya borrows from the doctrine as was applied in the UK. The UK following the 2002 laws has however shifted position to protect the sanctity of title when the land concerned is registered. The claiming procedure laid under the 2002 law makes it difficult for squatters to succeed in adverse possession over registered land.

 

Under the 2002 UK law, a squatter seeking registration rights over registered Land in the UK after ten years of continuous occupation prompts the court to notify the proprietor of the occupied land and accord them an opportunity to oppose the application for registration. If an opposition notice is lodged, the registration is rejected unless there are equitable grounds, or that the squatter is the proprietor of the adjacent land which must be without boundaries and the squatter occupies the land subject to adverse possession in false belief that they are the owner.

 

However, if the application for registration is rejected and the squatter continues in occupation of the land for a

further period of two years, they are entitled to re-apply for registration. Kenyan law has not yet created a distinction between registered and unregistered land as far as adverse possession is concerned. Likewise, there is no requirement that a registered owner of land must be notified of an application for registration of adverse possession rights, and therefore land owners are always caught by surprise.

 

The prominence of adverse possession in Kenyan law is arguably both desirable and undesirable depending on the side of the coin one is looking at it from. Considering that the origin of the doctrine was to help prevent waste of land and to force land owners to monitor their property, truly a land owner that leaves their property unlawfully occupied for a continuous period of 12 years or more cannot be said to have needed that land in the first place.

 

Enforcing adverse possession may at the end of the day contribute hugely to curbing the menace of land inflation in Kenya where scarcity of property has driven land prices to unimaginable highs. On the other hand, as was the observation of the UK high court and Court of appeal in A Pye (Oxford) Ltd. v. United Kingdom a law that ousts an owner of land on the basis of inaction for 12 years is illogical and disproportionate.

2.0 Determining an act of adverse possession

The question would be whether or not the legitimate title holder has been dispossessed, or has discontinued their possession of their lawful title.

 

For an individual to allege a right of title on land, the person ought to have occupied the land uninterrupted for a period not less than 12 years. They must show by clear and unequivocal evidence that his possession was not permissible. That it was open, with the knowledge of the true owner.

2.1 Case law:

In Kasuve Vs Mwaani Investments limited & 4 others 1 KLR 184, the Court of Appeal restated what a plaintiff in a claim for Adverse Possession has to prove; “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. They should have been habitants as of right without interruption for a period of 12 years. This could be either after dispossessing the owner or by discontinuation of possession by the owner on his own volition”.

 

The owner of the land must have been dispossessed or has discontinued possession of the property. It is also a well settled principle that a party claiming adverse possession ought to prove that the possession was peaceful, open and continuous. The possession should not have been through force, nor in secrecy and without the authority or permission of the owner.

 

It is assumed that if one owns property, they have an emotional bond to it. Therefore, they will rise up to defend their title against intruders on his/her property. It is also based on the presumption that people own land for many reasons. Among them economic, and if they could show no interest in in such land for lengthy periods, then they probably did not need it.

 

ANALYSIS.

 

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