The doctrine of adverse possession in Kenya

In Kenya, the doctrine of adverse possession is a legal concept that often sparks intense disputes, particularly in matters of land ownership. This doctrine, which allows a person to claim legal ownership of land after long, uninterrupted occupation, challenges the traditional view that formal title ownership is absolute. It highlights the law's recognition that possession, under certain circumstances, can override title ownership. The doctrine is rooted in public policy that encourages land use and discourages abandonment or neglect of land resources.

What Is Adverse Possession?

Adverse possession occurs when an individual, not the legal owner, occupies land in a manner that is open, continuous, and exclusive without the consent of the rightful owner. In Kenya, after a statutory period of 12 years, the person in possession may acquire legal ownership of the land.

Under the doctrine, a claimant can gain legal ownership through uninterrupted occupation of the land for at least 12 years. This period starts when the claimant begins occupying the land without the registered owner’s permission.

To successfully claim adverse possession, the claimant must demonstrate that their use of the land was continuous, exclusive, non-permissive, and open, in accordance with the Latin principle nec vi, nec clam, nec precario (meaning "No force, no secrecy, no permission"). Essentially, the occupation must be public, without the owner’s consent, and without the use of force or deception.

This legal principle seeks to balance the need for certainty in land ownership with the need to discourage landowners from neglecting their properties, thereby ensuring that land is put to productive use.

Legal Basis for Adverse Possession in Kenya

The primary legal foundation for adverse possession in Kenya is found in the Limitation of Actions Act (Cap. 22), specifically:

• Section 7: A person cannot bring a lawsuit to recover land after twelve years from when the right to sue arose.
• Section 38(1): A person who has gained land through adverse possession may apply to the High Court to be registered as the owner, replacing the registered proprietor.

The Land Registration Act, 2012, further governs the process of registering ownership once a successful adverse possession claim has been established. It’s important to note that while adverse possession can override title, formal registration procedures must still be followed to finalize ownership.

Key Elements of Adverse Possession

To successfully claim adverse possession, the claimant must satisfy several strict criteria:

1. Actual Possession: The claimant must physically occupy the land. This can include activities like building, farming, or residing on the land.
2. Continuous and Uninterrupted Possession: The claimant must occupy the land for a continuous period of at least 12 years without the landowner intervening to reclaim possession. Any attempt by the landowner to evict the claimant during this period disrupts the claim.
3. Open and Notorious Possession: The occupation must be obvious and well-known, meaning that the true owner should be aware (or should have reasonably been aware) that someone is occupying their land.
4. Exclusive Possession: The land must be occupied solely by the claimant, excluding the true owner and the general public. Shared occupation weakens the claim.
5. Non-Permissive and Peaceful Possession: The claimant must occupy the land without permission from the true owner. The occupation must also be peaceful and not involve force or threats.
6. Intention to Possess (Animus Possidendi): The claimant must demonstrate an intent to possess the land as their own, such as by building structures, fencing the land, or cultivating crops.

Who Can Claim Adverse Possession?

Any person, including squatters, licensees whose terms have expired, or even neighbours who have encroached on a boundary, can claim adverse possession, provided they meet the legal requirements. However, a tenant or licensee cannot claim adverse possession while still occupying the land with the owner’s consent, unless they continue to occupy it without consent after their tenancy or license expires.

How to Make a Claim

To formally initiate a claim of 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). The application should include:

• A supporting affidavit detailing the facts of possession.
• A copy of the title deed for the land.
• Evidence showing continuous occupation for at least 12 years.

The landowner (respondent) will be notified and given the opportunity to contest the claim. If the court finds that the claimant has met the statutory requirements, it may order the claimant to be registered as the new owner, effectively extinguishing the previous title.

Defences Against Adverse Possession

A landowner can defeat a claim by showing:

• They initiated legal action to recover the land before the 12-year period expired.
• The claimant was occupying the land with permission, such as a tenant or licensee.
• The claimant’s occupation was not continuous or exclusive.
• The occupation was conducted secretly or without the owner's knowledge.

Important Limitations and Clarifications

• The 12-year period may be reset if the landowner takes legal action or attempts to regain possession within this period.
• Land owned by the government or held in trust (e.g., public land, forest reserves, or road reserves) cannot be claimed under adverse possession.
• A co-owner cannot claim adverse possession against another co-owner unless they have ousted the other from possession.

Practical Advice for Landowners and Possessors

For Landowners:

• Regularly inspect and use your property.
• Address encroachments by issuing written notices or renew permissions as necessary.
• Take swift legal action if you discover someone occupying your land without consent.

For Possessors:

• Keep records of your possession, such as photographs, utility bills, and evidence of improvements made to the land.
• Consult a lawyer to assess if the 12-year period has been met.
• Avoid occupying land without clear ownership, as this could undermine any claim to adverse possession.

Conclusion

Adverse possession in Kenya is a powerful legal tool that can transfer land ownership to a long-term occupant if the conditions are met. However, anyone seeking to claim ownership through this doctrine must strictly follow legal requirements and procedures. Landowners, on the other hand, must be proactive in protecting their rights to avoid losing ownership due to inaction. The courts require clear and convincing evidence before granting such a significant remedy.

  Disclaimer: This article is intended for general information purposes only and should not be construed as legal advice.