One of the subjects that have been trending recently in Kenya is adverse possession. This has caused the public to dig into the matter and find solutions. In this blog, we break down the concept of adverse possession to help you know more about it.
What Is Adverse Possession?
It is a method of land title acquisition through a notorious occupation of the land by an individual without the consent of the real owner of the land for a period stated by the law. In Kenya, this period is usually 12 years according to the Limitations of Acts, Cap 22 of the Kenyan Laws. For one to demand and acquire a title through adverse possession, they should establish and meet certain conditions under the herein mentioned act.
What Are the Conditions For An Adverse Possession Claim?
1. The Land Must Be Occupied For 12 Years
According to Kenyan law, one can only claim land ownership through adverse possession after 12 years. This means you cannot claim land if you have not occupied it for this duration. The possession must be exclusive and without any interruptions in-between the 12 years. Peace must also have been evident during the time.
2. The Occupation of The Property Should Be Non-Consensual And Permissive
The party claiming possession is obliged to prove to the court that they encroached on the land and continued to occupy it for 12 years without the property’s owner’s consent. Nevertheless, this does not apply to a situation whereby the owner is a lessor while the one claiming is a tenant or has leased the property. The occupation only applies to a relationship that has been established.
3. The Property Occupation Should Be Notorius And Open
The claimant must demonstrate that their possession of the property was public for the twelve years. The claimant’s possession should also show that its adverse to the registered owner of the property. A wrongful disposition of the registered owner’s land which is visible to the public and exclusive should initiate this.
Where is Adverse Possession Process Initiated
A claim for adverse possession of the property is initiated at the High Court of Kenya with territorial jurisdiction over the property. The jurisdiction shall be the competence of the particular court but that depends on the property’s location. The court will hear and determine the claim presented before it. Any claim under adverse possession is initiated through an originating Summon under the limitations of the Actions Act and the Civil Procedure Act.
If a party or individual has continuously possessed a property for over 12 years without the consent of the legal owner, they can claim ownership of the land. One thing the public needs to know is that someone who occupies land with the registered landowner’s consent may be under a lease or tenancy agreement and cant claim adverse possession.
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