Cherono Tongoi: What you need to know about the law of adverse possession in Kenya

The law of adverse possession, also referred to as squatter’s rights, is a well-founded doctrine that allows a person who has unlawfully occupied another person’s land for a continuous period of at least 12 years to legally apply for registration rights over the property.

The Kenyan constitution, through Article 40 as read with Article 64, allows citizens to acquire and own property; land, through a freehold or a leasehold tenure, whilst Article 65, on the other hand, allows non-citizens to acquire and own property (land) through a leasehold tenure.

The doctrine is given a legal underpinning under the Statute of Limitations, Limitations of Actions Act Cap 22.

Section 7 of the Act states: “An action may not be brought by any person to recover land after the end of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

However, there are certain aspects/tests a party must satisfy to succeed in a claim for adverse possession, i.e., without secrecy, without force, and without licence or permission of the landowner, with the intention to have the land. Known as the four unities of adverse possession, listed below:

1. That he has been in continuous and uninterrupted possession of the land for 12 years or more.

2. That such possession has been open and notorious to the knowledge of the owner.

3. That such possession was without the permission of the owner.

4. That the claimant has asserted a hostile title to the owner of the property.

A party who successfully asserts a hostile title over land lawfully owned by another who has become indolent/not asserted his rights acquires land adversely. If and when the party has proven the elements required of her/him, he/she is entitled to a title vesting the land upon her/him, since even the registration of the land upon the other party does not distinguish the claim.

It is therefore important for landowners to know of the 12-year time frame and the consequences on lapse of the period and the fight you’ll have to put up to recover your own property.

A recommendation is for fencing your lands, continuous check-ups, and/or hiring a caretaker to stay thereon to avoid squatters.

For the adverse possessors, it’s important to note that the occupation ought to be hostile and open and with the knowledge of the owner. Secrecy in occupation, occupying land forcefully, and/or occupying with the permission of the owner defeats your claim.

Cherono Tongoi is an advocate of the High Court of Kenya. Email: gtongoi30@gmail.com.

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