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.

Analysis: The position of sole proprietorships in litigation in Kenya

It is a well-settled principle under Kenyan law that a sole proprietorship lacks the legal capacity to sue or be sued in its own business name. This principle derives from the Registration of Business Names Act (Cap. 499, Laws of Kenya), which expressly provides for the registration of business names used by individuals or entities but does not confer upon such names independent legal personality. A business name is merely a trading style and not a legal entity separate from the proprietor.

As the courts have consistently held, only natural or juristic persons — including companies incorporated under the Companies Act, 2015 or other statutory bodies corporate — possess the requisite locus standi to institute or defend proceedings in their own name.

In Suleiman Murunga v Nilestar Holdings Limited & Another [2015] eKLR, the High Court affirmed that:

“A business name is not a legal person and cannot sue or be sued in its own name. It is merely a name under which the proprietor trades. The proper party in litigation must be the proprietor himself.”

Similarly, in Githambo General Contractors v Kay Construction CompanyLtd [2015] KEHC 5066 (KLR), the court held:

The only question for determination in this instance, therefore, is whether one can sue under a business name by which he trades rather than in his own name and whether a suit filed in the name of a business by which one trades is sustainable. This question was raised and answered in the case of Lakhmani Ramji versus Shivji Jessa & Sons (1965) E.A. 125. At page 128 of that decision the court (Rudd, J.) said:-

The legal position is quite clear. A sole proprietor of a business cannot sue in the name of that business if that name is not his own name. He should not even sue in his own name trading in the business name. He should sue in his own name simpliciter and then in the body of the plaint he can say that he carries on business in the name of whatever his business name happens to be and is the sole proprietor of that business. That is technically the correct procedure but nowadays rectification is allowed so easily that the matter is merely a technicality.

Nonetheless, the Small Claims Court Act, No. 2 of 2016, introduces procedural flexibility in recognition of the informal nature of some business entities that come before the court. The prescribed Replying Affidavit form annexed to the Statement of Claim allows a respondent to indicate the nature of their business — including sole proprietorship — thereby enabling the court to regularize the identity of the parties without necessarily dismissing proceedings on technical grounds.

Notably, that  concept of the law is consistent with Order 1 rule 10 (1) of the Civil Procedure Rules, 2010 which provides that:-

10. (1) Where a suit has been instituted in the name of the wrong persons as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff upon such terms as the court thinks fit.

Where applicable, the appropriate course of action is to file a response to the Statement of Claim, drawing the court’s attention to the fact that the named claimant (or respondent, as the case may be) is a business name representing a sole proprietorship. Accordingly, we shall submit that the proper party should be the individual proprietor named in accordance with the requirements of law, and that failure to do so renders the proceedings defective in form.

It is prudent to invite the court to either strike out the claim or direct that the pleadings be amended to reflect the proper parties.

Parting Shot: “A sole proprietorship has no legal personality of its own and cannot maintain an action in its business name. Legal proceedings must be instituted in the name of the proprietor.”  

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