In the simplest of definitions, adverse possession can be described as the result of what happens when a landowner (titleholder to a property) tacitly allows a “squatter” to live on their property without taking action to enforce their right of ownership over the property over a specified period of time. A squatter, as distinguished from a tenant, is a person who settles on or occupies a property with no legal claim to it.

In Kenya, the Section 7 of Limitation of Actions Act, Chapter 22 of the Laws of Kenya states “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 to him or, if it first accrued to some person through whom he claims, to that person.

The same statute, in Section 38(1) states that “Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land
comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.

The effect of these clauses is simply that anyone who has had continued, uninterrupted use of land which violates the interest of the proprietor of such land for period of up to 12 years, can apply to the High Court in Kenya to have the land registered in place of the original proprietor, in effect having the rights of ownership appropriated to themselves.

Most absentee landowners – whether because they live in-country but far away from their investments, or whether they live abroad – rarely have someone trustworthy who they can assign responsibility for their property. That being the case, many choose to assign the responsibility to a relative or such other nominee until such time as they are available to take possession and undertake some sort of activity on the property. In some instances, the property has been purchased sight unseen and so the actual owner may not even be able to ascertain the physical location, landmarks or dimensions of the property.

With increasing frequency, unfortunately, having built their livelihood on such property, those not expressly appointed with custody, and those who may trespass on another’s property can legally take ownership of such property without further reference to the actual owner (title holder) by the claim of adverse possession.

Where such a custodian is able to meet the standards set out in jurisprudence, they can successfully apply to have your rights of ownership over the property extinguished. The individual needn’t even be someone known to you, the landowner. They only need to meet the prescribed standards determined by the law.

Adverse Possession: Legal Precedent & Effect

The law, in form of judicial precedent, has established that adverse possession is fundamentally a situation where a person takes possession of the land and asserts ownership rights over it while the person having title to it omits or neglects to take any action against such person in the assertion of his title for a certain specified period.

Adverse possession, which is also referred to as “squatter rights”, should not have been asserted by some use of force, neither should it have occurred in secrecy or without the authority or permission of the owner. The law deems that the proprietor of land has consented to such possession if it has occurred within the period stipulated and has occurred openly, continuously and without interruption.

In Black’s Law Dictionary, adverse possession is defined as the enjoyment of real property with a claim of right when that enjoyment is opposed to another person’s claim and is continuous, exclusive, hostile, open and notorious.

The number of judicial precedents that describe adverse possession and the principles required to demonstrate it and those surrounding its determination in law are numerous. And while the individual circumstances may vary from case to case, judicial precedent is highly instructive in determining the conditions against which a plaintiff’s claims can be entertained and the technicalities around the individual case can provide guidance, on the balance of facts, as to how courts are likely to rule on any subsequent matters.

The principles of adverse possession primarily recognize that land is a factor of production and that for this reason, therefore, it would be inequitable to remove the person(s) who has (have) been utilizing the property (within what is often referred to as the statute of limitations), especially where they can prove that they have established their livelihoods on that property and have had unfettered use of the same for the period prescribed in law. The matter for determination by courts is one of equity – ensuring that the rights of the “deemed” owner are not interrupted.

To assert adverse possession, squatters who, for example, erect their home or permanent structures on the property, subdivide the property, fence off the property, connect utility services to the property in their name, conduct some sort of livelihood activities including operating businesses on the property can make and lay claim to such property. In judicial precedent, to assert their claims, squatters on your land will invariably cite raising their families on the property, conducting rites of passage ceremonies (including marriage ceremonies) and even burials on the property.

In effect, adverse possession extinguishes the rights of a titleholder and confers the rights of ownership to the person who has enjoyed unfettered possession of the property for a period of 12 years or more. Simply stated, the one in possession of the property becomes its new owner.

Adverse Possession: Absentee Owners

It is incumbent upon every investor to take measures to protect their assets. Adverse possession proves that it isn’t merely sufficient to hold title to your assets and brings to life the legal maxim that possession is nine tenths of the law! The sad reality of investing in a property only to lose it to squatters is perhaps a most unfortunate happenstance but it is a fate that has befallen many property investors in Kenya.

In most instances today in Kenya, the circumstances that give rise to adverse possession quite often arise without the knowledge of the owner. This is particularly the case with absentee owners, mostly Kenyans residing in what is quintessentially referred to as the diaspora. With the myriad property subdivision schemes all across the country, it is not uncommon for many property buyers – even locals – to buy property, specifically vacant land, in places where they do not live or frequent regularly. Without ascertaining their purchase beforehand, many might typically be unaware of the actual condition of the property, including whether it is actually occupied even at the time they acquired it. Some typically allow the seller to continue using the property in their absence and many acquire property mired in entanglements by failing to undertake proper due diligence or by acquiring property held under letters of allotment (without formal title).

Adverse Possession: How Can You Secure Your Assets?

The most obvious question that many would therefore raise is, “How can one escape such a fate?” The simple answer would be to enforce your rights as an owner, in whatever way, shape or form. Obviously, it would be ideal to simply enforce the right within the law, and of course before the expiry of a period of time where your rights of ownership would become tenuous. In Kenya, that often takes the form of unsanctioned evictions of squatters from the property. In some instances, property owners have taken the law into their own hands by using underhanded tactics, including the wanton demolish of any temporary or permanent structures erected by squatters by whatever means necessary including bulldozing and arson!

But are there more “reasonable” ways to deal with the problem?

It is needless for a titleholder to lose their property due to adverse possession. In this market, most smallholder land is acquired with the view to develop down the road, perhaps construct a residence in the future, or held for a period of time as investments and then eventually disposed to a secondary buyer for capital gains. In the intervening period between the time they are purchased and eventually developed or disposed of, most remain vacant and unused – for the most part, because they are either so highly fractured that they might not be able to viably sustain any robust economic venture or because their owners live at a distance and cannot manage the properties themselves. Enforcing your property rights shouldn’t be too difficult if there was a consideration of some economic activity that the property could sustain, prior to its acquisition, or if you had more than just capital gains in mind at the time of the acquisition, or if your plans to develop the property are not in the too-distant future.

Of course, you may not be able to make predetermination of either of these scenarios at the time, or prior to acquisition. However, there are some other basic measures that you can take to secure your property.

• You can appoint a manager/trustee to ensure oversight of your property and provide effective reporting of developments in the neighbourhood over the time you hold it. By engaging an independent property manager/custodian over the property and ensuring that you regularly change out such custodians so that at no time has any single individual exercised possession over the property for longer than the period defined in law entitling them to take adverse possession of the land ensures that.
• Physical deterrents: You can ensure proper demarcation of the property by erecting fencing and even erect temporary structures on the property to deter encroachment and secure your ownership.
• Undertake some sort of legally contracted commercial activity on the property. You can undertake high-value (but low-impact) projects that don’t require frequent, hands-on project management which can generate handsome returns into the future.
• Keep up with the payment of any government levies and dues on the property and ensure to keep records of the same demonstrating that you have maintained the privileges of the ownership of the property.
• Depending on the location of the land, you can aggregate your property with others in a cooperative (chamas) to scale and increase your ability to undertake commercially viable projects, increasing the productivity of their holding(s).

If your property has already been adversely possessed by a squatter(s), you can get a lawyer to write them a demand to vacate the property or face legal action or report the trespass to the local authorities, including administration officials and police.

It is best to do so in writing to ensure that there is a physical record of your objection to the use of the property by the trespasser. The possible solutions around what to do with vacant land are innumerable and rather than expose yourself to adverse possession you may exercise any of the many options at your disposal, even including contractually leasing your land to others who can provide a return on your investment. You can even deploy a combination of these and several other strategies to effectively deter the threat of adverse possession by squatters.

The incidence of adverse possession claims is seemingly on the rise; attributable in part due to the increased investment in smallholder property fueled by speculation in growth in property values. But there are a myriad social and economic factors responsible for increased adverse possession claims and this trend will continue even into the future.

If you would like to inform yourself further on the subject, here are some select legal precedents that might help shed light on the subject of adverse possession:

• Maliamu Ncurubi M’Ibiri v Francis M’Imanyara M’Ringera[2011]
• Malcolm Bell v Daniel Toroitich Arap Moi & another [2013]
• Celina Muthoni Kithinji v Safiya Binti Swaleh & 8 others [2018]
• Ravji Karsan Sanghani v Peter Gakunu [2019]
• Aziza Soud Hamisi v Loise Nduta Itotia [2019]
• Loise Nduta Itotia v Aziza Said Hamisi [2020]

These are just a few precedents that have been established in Kenya on the subject of adverse possession. Obviously, they can only offer insight based on the individual circumstances presented and a shrewd investor may be served well in taking the time to understand more comprehensively what the law says on adverse possession.

Now that you’re slightly more informed, what would you like to do to secure your property?

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