In Kenya, the doctrine of adverse possession remains one of the most intriguing and misunderstood legal concepts, often leading to intense litigation, especially in land disputes. Rooted in the idea that long, uninterrupted land occupation can override formal title ownership, this doctrine underscores the law’s recognition of possession as a basis of ownership, provided it satisfies specific and strict requirements. The doctrine is founded on public policy promoting land use and discouraging neglect.
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.
Who Can Make a Claim?
Any person, including a squatter, a licensee whose term has expired, or even a neighbour who encroaches over a boundary, can claim adverse possession provided all the legal requirements are met. Importantly, a licensee or tenant cannot claim adverse possession during the subsistence of their tenancy or license, unless they continue to occupy after expiry without consent.
How to Invoke the Doctrine of Adverse Possession
To formally claim adverse possession, the applicant must file a suit in the Environment and Land Court (ELC) under Order 37 Rule 7 of the Civil Procedure Rules, 2010, which provides the procedure for originating summons. The application must include:
- A supporting affidavit stating the facts of possession;
- A copy of the extract of the title to the land; and,
- Evidence of continuous occupation for at least 12 years.
The respondent is typically the registered owner of the property and must be notified and allowed to contest the claim.
Once the court is satisfied that the statutory period has lapsed and all the elements are proved, it may order the applicant to be registered as the new owner, and the previous title is extinguished.
Defences Against Adverse Possession
A landowner can defeat a claim by showing:
- Legal action was taken to recover the land before the 12-year period elapsed.
- The occupier was on the land with permission (e.g., as a tenant or licensee).
- The occupation was not exclusive or was interrupted.
- The occupation was not open or was conducted in secrecy
Important Limitations and Clarifications
- The 12-year period may reset if the landowner files suit takes possession, or issues an eviction notice.
- Land belonging to the government or held in trust by county governments (e.g., public land, forest reserves, or road reserves) cannot be claimed under adverse possession.
- A person in joint possession with the owner cannot claim adverse possession unless they oust or exclude the co-owner.
Practical Advice to Landowners and Possessors
For Landowners:
- Regularly inspect and utilize your property.
- Caution caretakers or squatters in writing, renewing permissions if necessary.
- Take prompt legal action upon discovery of encroachment.
For Possessors:
- Keep photographic and documentary evidence of possession (e.g., utility bills, structures, farming).
- Consult a lawyer early to assess whether the 12-year clock has run.
- Avoid entering under the mistaken belief of ownership, as this may not qualify.
Conclusion
Adverse possession in Kenya is a powerful doctrine that can transfer land ownership from a negligent owner to a long-term occupier under specific conditions. Anyone relying on this doctrine must meet strict and cumulative legal requirements and follow the prescribed legal process. Conversely, landowners must remain vigilant to protect their interests and avoid losing property through inaction. Kenyan courts will only grant such a drastic remedy upon clear and convincing evidence.
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Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified advocate for personalized legal guidance.
