ACQUIRING LAND THROUGH ADVERSE POSSESSION IN KENYA

By: Okinyo Ronald Makonjio

 

The doctrine of adverse possession is one that grants rights or title to land owned by a person to the adverse possessor subject to the satisfaction of the common law requirements.

The common law requirements have been adopted and principally recognized by courts in Kenya to confer the rights to the adverse possessor.

The common law requirements

The following are the universally applicable requirements:

• That the possession and utilization of the land was open and notorious meaning that it should be obvious and open to the registered owner.
• That the possession and utilization should be exclusive to the person claiming the accumulated rights over the land.
• That the occupation ought to be hostile and adverse to the registered proprietor of the land.
• The statutory period of 12 years should be satisfied and
• The statutory period should have been continuous and uninterrupted.

Statutory connotations of adverse possession in Kenya

The main governing statutes are the Limitation of Actions Act Cap 22 and the different laws on land and its administration

Under section 6 of the Limitation of Actions Act, an action to recover land is capped at 12 years. Meaning that one has 12 years to recover land with which an adverse possessor is in possession and utilisation failure to which the ownership rights may or shall accrue to the adverse possessor.

In addition to the above, section 17 of the Limitation of Actions Act does provide for the title getting extinguished upon the lapse of 12 years. See also sections 13, 37 and 38.

Further, adverse possession has been acknowledged under section 28(h) of the Land Registration Act, 2012 as an overriding interest in and thus has the capability of extinguishing the registered owners rights in the subject land.

Jurisprudence in Kenya on Adverse Possession

For purposes of this article, I will highlight one case being Wilson Njoroge Kamau v Nganga Muceru Kamau [2020] eKLR, in this case, the plaintiff instituted a suit in the form of Originating Summons against the defendant for purposes of declaring him (plaintiff) to being the legal owner of suit property land parcel Number LOC2/KANGARI/506. He claimed to have been in possession and utilisation of the suit property since 1971-2005 and thus had acquired rights over the suit property. The appellate court went further to deny the defendant an injunctive relief since as at the time of seeking the injunction, the plaintiff was the one in possession of the land and granting the injunction would have resulted in the eviction of the plaintiff as a consequence. The court granted the plaintiff the rights over the land on account of adverse possession.

The court relied on the following cases which are worth having a look at of Wanyoike v Kahiri [1979] KLR, Joseph Gahumi Kiritu Vs Lawrence Munyambu Kabura CA No 20 OF 1993 and Kweyu v Omuto, C A Civ Appeal 8 of 1990.

Conclusion

Having a certificate to title is the indefeasible proof of ownership as it is well stated under the Land Registration Act, 2012. However, this is not absolute as it is subject to some limitations, principles and doctrines which in this case include the doctrine of adverse possession.