Beware the risk of losing land through adverse possession

Landowners in Kenya must always be alert to the potential risk of losing their land as a result of encumbrances on the property.

Landowners tend to be conscious of the risks pertaining to mortgages and other registered interests over their properties. However, the dangers relating to unregistered interests loom large and landowners must be alert to these as well.

Of crucial importance is the concept of “adverse possession” which can easily trip up unwary landowners.

If a third party has been in continuous possession of another person’s land for at least 12 years without the consent of the registered owner of the land, such third party can claim ownership of the land.

The concept of adverse possession in Kenya is entrenched in statute. Section 8 of the Limitation of Actions Act provides that an action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued.

The concept traces its origins to the common law of England.

At its inception, a person claiming adverse possession was required to prove that he had been in possession of the land before the reign of King Henry I. The cut-off date was subsequently changed to a specified number of years.

Adverse possession is premised on the equitable doctrine of laches which provides that the failure by a party to assert a right or claim in timely manner can prejudice that party.

Such neglect results in the landowner’s permanent loss of his interest in the property becoming a mere “paper owner” as opposed to an actual owner.

The law aids the vigilant and not the indolent and it cannot therefore be used to protect a party who has failed to enforce or defend his property rights in good time.

For instance, if a landowner, mistaking the boundary lines to his property constructs his house in such a way that it encroaches on his neighbour’s property but the neighbour sits back to watch as the construction is completed, he cannot later sue his neighbour for trespass or encroachment since he would be unfairly benefiting at his neighbour’s expense.

In Kenya, adverse possession has in the past been used by purchasers of property to enforce their rights over land.

For instance when a purchaser who has paid for land but due to some legal technicality, the legal title in the land is not transferable to him. The principle of adverse possession is however increasingly being used by squatters to acquire title to land.

In order to establish title under adverse possession, the person claiming title to the property must show the concurrent existence of the five elements of adverse possession for the statutory twelve years.

The person must have had actual possession of the property for a continuous period of not less than twelve years. In addition, the possession by such person must be hostile or adverse, that is, without the consent of the registered owner.

The claim must also be inconsistent with the true owner of the property.

If the statutory period of twelve years has not lapsed, courts in Kenya will not uphold a claim for adverse possession. The filing of a lawsuit against a person claiming adverse possession to land “freezes the running of time”.

This means that provided that such a case is filed prior to the expiry of the statutory 12 years, even though the person claiming adverse possession remains on the property pending the determination of the lawsuit and the lawsuit is only completed after the expiry of the statutory 12 years, the courts will not take into consideration the time after which the lawsuit was filed in determining whether the test for adverse possession has been met.

In addition, possession must be continuous and courts will not uphold a claim for adverse possession if the possession was interrupted.

The possession must be hostile to the title or claims of the landowner and not consensual. Therefore, someone who occupies land with the consent of the landowner, for instance under a lease, cannot claim adverse possession.

Of note is the fact that adverse possession tramps provisions of the law which would otherwise have ensured that the person claiming adverse possession would not have acquired legal title to the property.

For instance, under the Land Control Act, it is not legally possible a person who is not a Kenya citizen to directly acquire agricultural land in Kenya.

However, if such non-Kenyan citizen is claiming ownership of agricultural land though adverse possession, the restrictions under the Land Control Act do not apply.

This was decided in the 1984 case of Public Trustee versus Wanduru.

The Court of Appeal in the 2007 case of Situma versus Cherongo reiterated the position that where a purchaser of land is granted possession of the land by the seller pending the completion of the sale but the transaction subsequently becomes void, the continued occupation of the land by such person becomes adverse to that of the landowner.

Legal concepts
Situma had in 1972 entered into an agreement for the purchase of land in Bungoma from Cherongo. Situma settled on the land with his family.

Situma died in 1979 by which time the transfer of the land had not been completed because the consent required from the Land Control Board had not been obtained.

Situma’s eldest son, Mutafari, filed a lawsuit seeking to be registered as the owner of the land on the grounds of adverse possession.

The Court of Appeal ruled that if a squatter or the prospective purchaser of land is in adverse possession of the land, the mere sending of a letter by the true owner asking the squatter to vacate the land does not terminate the adverse possession.

The statutory period of twelve years begins to run in favour of the squatter or occupier unless he is evicted from the land or the squatter acknowledges the interests of the true owner.

It is, however, noteworthy that an adverse possession claim cannot be made in respect of Government land.

It has been argued that few legal concepts are as unjust as adverse possession.

However, until any changes are made to the existing laws, if ever, landowners must remain vigilant so as to ensure that occupiers of their properties do not acquire adverse possession rights to their properties, thereby leaving them mere “paper owners”.

Kiunuhe is a Nairobi Advocate. She can be reached at [email protected]