What is adverse possession?

 
Adverse possession refers to a situation where a person who is not the legal owner of land occupies it openly, continuously, and exclusively, without the consent of the valid owner, and after a statutory period (12 years in Kenya), may acquire legal ownership of that land.

Subsequently, adverse possession allows an individual to claim legal ownership of land through continuous and exclusive occupation for twelve years or more, without permission from the registered owner.

A person claiming adverse possession must, in addition to showing continuous and uninterrupted occupation beyond 12 years, prove non-permissive or non-consensual, actual, open, notorious, exclusive, and adverse use/occupation of the land in question for an uninterrupted period of 12 years as espoused in the Latin maxim, nec vi nec clam nec precario which means “ No force, no secrecy, no permission”. The occupation must be as of right, open, and without the owner’s consent.

The doctrine seeks to strike a balance between promoting certainty in land tenure and penalising landowners who “sleep on their rights” in a bid to promote equitable use of finite land resources.

Legal Foundation of Adverse Possession in Kenya
The principal legal provision for adverse possession is anchored in Sections 7 and Section 38 of the Limitation of Actions Act, which provide as follows:

Section 7: “An action may not be brought by any person to recover the 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.”
Section 38(1): “Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, he may apply to the High Court for an order that he be registered as the proprietor of the land in place of the registered proprietor.”
The Land Registration Act, of 2012, further governs the procedural registration aspects once a successful claim is established. Please note that while adverse possession overrides title, registration processes must still be completed to perfect ownership.

Essential Elements to Prove Adverse Possession
For one to succeed in a claim of adverse possession, the claimant must prove the following key elements cumulatively and strictly: –

Actual Possession
The claimant must physically occupy the land. Activities such as building, farming, fencing, or residing on the property constitute actual possession.
Continuous and Uninterrupted Possession
The claimant must have occupied the land continuously for at least 12 years, without interruption by the true owner.
If the landowner takes action to evict the possessor within this period, the time is interrupted.
The possession must be continuous. It must not be broken for any temporary purpose by any endeavours to interrupt it or by any recurrent consideration
Open and Notorious Possession
The possession must be open, visible, and notorious, such that the true owner is aware (or ought reasonably to be aware) that someone else is occupying their land.
Exclusive Possession
The claimant must possess the land exclusively, to the exclusion of the true owner and the public at large. Shared use weakens the claim.
Non-Permissive and Non-Consensual and Peaceful Possession
The occupation must be without the owner’s permission, license, or consent.
The occupation must be peaceful, not acquired or maintained through force, fraud, or threats.
Nec vi, nec clam, nec precario — meaning “no force, no secrecy, no permission”
Intention to Possess (Animus Possidendi)
The claimant must show an intention to possess the land as their own. Acts such as fencing, building, cultivating, or renting out the property may demonstrate such intention.
The owner must have been dispossessed or discontinued possession voluntarily, allowing the claimant to take over.