The Constitution of Kenya states that all land belongs to the people of Kenya, however, the right to own land is not absolute as the state reserves the right to recall on such right subject to the provisions of the law.
This right to use and own land has certain caveats and adverse possession is one of them.
“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner.” – Court in Malindi App No. 56 of 2014 Mtana Lewa v Kahindi Ngala Mwagandi  eKLR.
In other words, adverse possession means that somebody can get your land by simply becoming a squatter.
Article 40 as read with Article 64 of the Constitution of Kenya, 2010 allows for citizens to acquire and own property through a freehold or a leasehold tenure. The same is true for non-citizens under Article 65 of the Constitution whose ownership is limited to a leasehold tenure. The law therefore guarantees everyone the right to property ownership and equitable access to land.
However, despite the protection of right to property, a landowner is not assured of lifetime possession in the event of abandoning the land for years or not removing squatters from the land. This right may be lost through adverse possession and is backed by the maxim equity aids the vigilant not the indolent.
Adverse possession as one of the ways of acquiring land in Kenya is premised on the principles of limitation of actions. The Limitations of Actions Actbars a person from bringing an action for recovery of land at the lapse of twelve years from the day that right of action accrued.
This right to be adverse to land does not automatically accrue unless the person in whose this right has accrued takes action. Further, the Act allows for a person who claims to have become entitled by adverse possession to land, to apply to the High Court for an order that he/she can be registered as the proprietor of the land/ lease in place.
Therefore, to determine whether the Applicant’s rights accrue the Court will seek to answer the following: –
- How did the Applicant take possession of the suit property?
- When did he/she take possession and occupation of the suit property?
- What was the nature of her possession and occupation?
- How long has the Applicant been in possession?
Due to the punitive nature of adverse possession and the spirit of the Constitution to protect the right to property, a claim cannot be upheld unless it meets certain requirements so that landowners don’t arbitrarily lose properties they have worked hard to acquire.
Requirements for Adverse Possession
- Occupation is open and notorious.
- Occupation is exclusive.
- Occupation is hostile.
- Occupation continues for the statutory period of at least 12 years.
- Occupation is continuous and uninterrupted.
“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 and as of right without interruption for a period of 12 years either after dispossessing the owner or by discontinuation of possession by the owner on his own volition”.
It is crucial that landowners fence and continuously check on their land in order to get rid of squatters or timely address any trespass that could lead to loss of property. Inversely, adverse possession is intertwined with peaceful and open habitation. Your claim will then lose its significance if you occupied the land forcefully, secretly or with the permission of the owner.
By K. Odundo
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