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WHAT IS ADVERSE POSSESSION, AND HOW DOES IT WORK?

Adverse possession is a concept that allows a person to claim land they have occupied without permission from the rightful owner for a particular duration, usually 12 years, in Kenya.

If somebody has been living on or otherwise using a piece of land without the owner’s consent, and if the owner allows such possession to continue without taking steps to reclaim the property, the inhabitant may come to have legal title to that land.

This is sometimes called squatter rights and rests on the notion that land should be used and maintained.

Importance of Adverse Possession in Kenya Property Law

Adverse possession within the Kenyan law of land contributes significantly to having land.

This concept of squatter rights is especially relevant in a nation with a history of land disputes, as it grants long-term occupiers the right to claim their property.

According to the Limitation of Actions Act, 12 years of continuous occupation results in the original landowner losing a set right to reclaim their land if they have not taken action against the squatter’s occupation.

Legal Regime Governing Adverse Possession

The statutes and case law that form the basis of the law of adverse possession in Kenya are:

This type of limitation of action pair is common as per the Limitation of Actions Act (Cap 22) and Section 7. 

It states that no action shall be brought to recover the land after the expiration of twelve years from the date the right of action accrued.

Further, case laws like Kasuve vs Mwaani Investments have shaped important tenets concerning possession requirements.

This means that for a claim of adverse possession to succeed, the occupation must be peaceful, exclusive, and non-permissive. The output sentence has a human-like style.

This idea is commonly associated with squatter rights — the rights of people who occupy land to which they do not have a legal title.

Historically, adverse possession was developed to ensure land is used, not dormant.

If someone has been occupying the land you own for a long time and the landlord does not take any action, the law presumes that the landlord no longer wants the land.

It is essential in Kenya’s Land Law because it enables long-term occupiers to apply for ownership and resolves land disputes in Kenya.

Differentiating Adverse Possession from Other Types of Land Occupation

How does adverse possession differ from regular occupancies like tenancy?

With tenancy, an individual rents land with the landowner’s consent and pays rent. Adverse possession involves possession without the owner’s consent and can result in the transfer of legal title upon fulfillment of certain conditions.

For instance, to qualify as an adverse possessor level of use, the possessor must show exclusive possession, which means that they are the only one using the land and that their use was peaceful and continued.

Legal Framework in Kenya

Statutory Basis

However, the law on adverse possession in Kenya is primarily contained in the Limitation of Actions Act, Chapter 22 of the Laws of Kenya.

Such laws provide specific guidelines for how long a person who occupies land without the owner’s permission can occupy it before they can acquire ownership rights.

As per Section 7 of this Act, there can be no suit for land recovery after 12 years of continuous and uninterrupted possession.

If someone lives on or uses a piece of land for 12 years without the owner’s permission, they most likely have the right to claim it as their own.

Judicial Precedents

In Kenya, the profile of adverse possession has been framed in some court cases. Key cases include:

Kasuve v Mwaani Investments

The case addressed the elements required to establish a claim of adverse possession; the occupation must be open, peaceful, and continuous for the requisite period.

Mbira v. Gachuhi

This case supported the principle that the possessor needed to prove exclusive possession of the land without a landowner’s permission for the success of a claim.

Such case law aids with the interpretation of the law and with insights | on how courts are apt to have a look at assertions of adverse possession.

Possession has to be non-permissive, for instance, meaning that it cannot be founded on any agreement or permission with the owner.

They also note that the way the occupier uses the land must be apparent even to the original owner.

Elements of Adverse Possession

Duration

Kitinda cites a provision under Kenya Land Law that a person can claim land ownership based on adverse possession for as long as they have continuously occupied the area for a minimum of 12 years.

As the Limitation of Actions Act explains, the original owner loses all rights to the property after this time if no action is taken to eject the occupier.

This is known as the 12-Year Rule-Time, which starts to count down from when the occupier begins using the land without consent.

If their occupation is ever interrupted, even for reasons beyond their control, they are back to square one and must start the 12 years again.

Nature of Possession

A few elements must all be present for any claim of adverse possession to be successful. These include:

Open and Notorious Possession

The occupation is visible to anyone, including the rightful owner. This means that the occupant cannot conceal its use of the land or act secretly.

Possession Must be Continuous and Uninterrupted

The person occupying must occupy the land without obstruction for a minimum of 12 years. This continuity ends if the original owner takes measures to recover the land.

Exclusive Possession

That means a single entity controls the land, neither shared with other entities nor the original owner.

Non-Permissive Occupation

The possession should not have been permissive with the owner, as, for example, under a lease or license. It also must not be affected by force or fraud. Courts have stressed that occupation must be peaceful and not accompanied by violence or threats.

How To Successfully Claim Adverse Possession

Steps must be followed when claiming adverse possession in Kenya to ensure that your claim is valid. Here’s one way to walk through that process:

1.  Collecting Evidence of Possession

If they want to win an adverse possession claim, you must build clear evidence demonstrating your land occupation for over 12 years. This evidence can include:

Eyewitness Statements

Testimonies from people who can verify your squatters’ property possession rights.

Documentary Evidence

Any records, photographs, or other materials that show you have continuously occupied the property.

2.  Submit an Application to the Appropriate Authorities or Courts

After collecting enough evidence, the next stage is filing your claim in court. In Kenya, this is usually done at the High Court, which has territorial jurisdiction over the property.

The application is typically made via an Originating Summon, whereby you formally ask the court for a ruling on your claim.

Defense from the Original Owner

The other side of the original owner is their possible defenses. Depending on the situation and evidence, the defenses play a crucial role in recovering the ownership, which can be transferred, according to the Limitation of Actions Act. The possible defenses may be as follows:

Interrupting the Continuous Occupation

 The 12-year continuous period can be interrupted when the owner reclaims the land, fences it, or uses it in any way. The 12-year regulation does not apply in the ultimate case.

Proving the Permissive Occupation

If the occupier has permission to use the premises or the license or agreement with the original owner allows it, the situation is not covered by adverse possession.

Demonstrating the Lack of Exclusive Possession

In case the occupier shared use of the premises with others, or if the original owner retained the level of control, the situation does not meet the requirements of the law.

Filing a Legal Action Before the Expiry of 12 Years

The owner may file an action within 12 years to recover the ownership of the land used by the other side. The time from the first use will not be active against the original owner.

Disputing Open and Notorious Possession

If the premises were used secretly so the original owner had no knowledge or the way they were used did not put the owner on alert, it is not open and notorious.

What are the Implications of Adverse Possession

For Landowners

Risks of Ignoring Property Rights

Landowners who leave their property unattended for too long will lose ownership through adverse possession. This is particularly true when they have not followed up on unauthorized use or pursued legal action within 12 years.

For Adverse Possessors

Rights Obtained By Successful Claims

If successful, an adverse possession claim results in the occupier receiving full legal title over the land. They can then claim to be the rightful owner of the product and all rights of ownership under Kenyan law.

Restrictions and Obligations After Acquisition

Once land ownership has been established through adverse possession, new owners must adhere to applicable property laws, pay taxes, and respect neighboring property boundaries.

Contact Chepchieng and Company Advocates, the best law firm in Nakuru, if you have land disputes, property boundary issues, adverse possession, or other aspects of Kenya Land Law.

We have Land lawyers in Kenya who are knowledgeable and experienced in resolving land disputes, property rights enforcement, the Limitation of Actions Act, and land matters whether you are a land owner wanting to protect your rights or an occupier considering your Rights.

Conclusion

Possession will help protect the rights of long-term occupiers, but it can also expose landowners to risks when they abandon the use of their land. In fairness to all the parties, reform of the law regarding adverse possession will be necessary, especially as land issues continue in Kenya.

Written By:

James Chepchieng

Advocate of the high court of kenya

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