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Settling Land Disputes Part 2

Did you know that you can legally lose your property to a squatter on your land if you fail to take action? Did you also know that a person who has occupied your land illegally for more than 12 years uninterrupted and without your authority can lay a legal claim over your land? This doctrine is covered under squatter’s rights or in legal terms the principle of adverse possession. The Court of Appeal defined it as a situation where a person takes possession of land, asserts rights over it and the person having title to the land neglects or omits to take action for a period of 12 years.

This doctrine is provided for under the Limitation of Actions Act which provides that a person may not bring any action before court over a land dispute if the person failed to recover the land at the end of 12 years. This principle is based on the logic that a person who best uses the land has a superior claim to the owner if the owner fails or neglects to take care of it.

In the famous 1977 case of Kimani Ruchine vs. Swift Rutherfoord, Justice Kneeler stated the circumstances needed to lay a claim on land on the principle of adverse possession. He was guided by the Latin principle Nec vi, nec clam, nec plecario meaning no force, no secrecy, no evasion. Guided by this principle he spelt out the conditions required to prove adverse possession as follows:

  • Exclusive and Continuous Possession: The person must show that they have lived on the land by themselves not shared with the actual landowner for a continuous period of 12 years without interference from the actual owner of the land. The occupation of the land must be continuous, and no attempts were made to interrupt occupation of the land.
  • And Without consent: The person must have lived on the land without the knowledge or consent of the owner but must be open and apparent that the trespasser is on the land. Also, you must show that the owner had means of knowing that there was a trespasser but failed to act for a period of over 12 years.
  • Actual possession/Occupation: The person must also be physically present on the land for the duration of more than 12 years. The squatter should show that they have made more use of the land than the actual owner of the land.

Following this decision in 1977, a group moved to the Court of Appeal to challenge this decision in the case of Mtana Lewa. In this case the parties challenged the doctrine of adverse possession claiming that it violated the right to owning property under the Constitution. They also argued that adverse possession allowed a criminal to profit from his crimes. The court ruled that the court had the right to deprive a person of property especially a person who makes no use of it. The three-judge bench ruled that land should not be abandoned or left to waste as it would be contrary to principles of land policy. They also stated that for such a claim to succeed the person must prove that the possession of land was not by force, stealth or with the license of the owner. Also, there must be a continuity in the squatting done in the open and with full knowledge of the owner. The court refused to declare the Limitations of Actions Act as unconstitutional because they stated it was enacted to ensure that all litigation must come to an end. It was in the public interest that an absentee landlord cannot claim his right over landless squatters in times where the commodity was scarce.

When a person has occupied land for the 12 years uninterrupted, the principle of adverse possession does not happen automatically. The person must apply to the court to be granted ownership of the land. The party also has to prove that nature of possession of the land is adverse, without the consent of the owner, for a prolonged period and that they intend to lay claim over the land.[2] The squatter also should not have occupied the land by force, nor by deceit. It should be clear and evident to both the neighbours as well as the owner, had they inspected their land, that there was a person trespassing on their land.

In conclusion, the law protects and guarantees the right to ownership of property. However, this right, like many others, is not absolute.  Should you own a piece of land that has been under the occupation of another person for a period as long as 12 years then you, by law, forfeit the right to claim ownership of such property. In order not to fall victim to this ensure that you do regular inspections on your property, and should you notice an unauthorized person, then take immediate steps to remove the person from your property. Legally you can sue them for trespassing onto your property. To demonstrate the disruption of continuous occupation, it may be useful to place adverts in local dailies or the Kenya Gazette asserting ownership.

Research by Maurine Kerich.