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
