ADVERSE POSSESSION PRINCIPLE
Legal ownership of Land after 12 years of being a squatter
Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period.
This age-old principle of possession has been used to acquire land from many unsuspecting land owners in Kenya.
The basic principle of adverse possession is that if a person has been on a piece of property for more than 12 years uninterrupted and without the authority of the owner, he or she can lay claim to that piece of property the same.
The principle is based on the logic that the person who makes the best use of land has a superior claim to it than the owner, if that owner never cares for the property.
This doctrine has been embodied in the Limitation of Actions Act Section 7. The Act dictates that 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.
In 1977 during a ruling, Justice Kneeler explained that what is needed more is for the applicant to prove that they have used that they have used the land on which they claim as of right.
Justice Kneeler invoked the principle of “no force, no secrecy, no evasion”. In Latin this translated to Nec vi, nec clam, nec plecario.
The plaintiff, however, must show that the owner had knowledge and knew of the actual or constructive possession of occupation. This possession must be continuous and should not be broken for any temporary purposes or by any endeavors to interrupt it or by recurrent consideration.
Another principle on adverse possession is that, the registered owner must have been aware of the trespasser’s presence but did not interrupt for 12 years.
With the enactment of the Constitution in 2010, the court of Appeal was asked to examine the constitutionality of the doctrine of adverse possession with an argument that the 2010 Constitution did not allow for the operation of that doctrine and that parliament was prohibited from enacting laws that would deprive any person the right to his property.
Another submission in the case was that Article 38 of the Limitations of Actions Act, which regulates adverse possession, violated the right to property since it would impoverish the owner of the land adversely possessed.
The argument brought before Justices Kathurima M’Inoti, Milton Asike-Makhandia and William Ouko was that the 2010 Constitution does not allow for the operation of the doctrine of adverse possession and that Parliament was prohibited from enacting legislation that would arbitrarily deprive one of his wealth.
For ages, it has been held by courts that right of action cannot arise out of fraud. The question before the court was where the adverse possession principle sat. Can a person who has trespassed on another’s property claim legal ownership of the same and can the court lend its assistance to such a person?
Justice Angote held that the court still has jurisdiction to deprive a person of his property through the doctrine of adverse possession and that Parliament can enact a law to limit the right to own property.
As such, he said, the court had jurisdiction to hear a claim for adverse possession despite the protection of the right to property as in Article 40 of the Constitution.
He also refused to declare Section 38 of the Limitation of Actions Act, which tackles adverse possession, as contrary to the Constitution.
The three-judge bench was told that land should not be abandoned or left to waste for that would be contrary to the principles of land policy.
Rights and Duties
There are rights and duties that come with ownership of property. The most important one being that land should be put to economic use.
In order to claim land that has been adversely possessed, the court stated that “essential prerequisites” should have taken place within the 12 years. The most important condition being that “the possession of the adverse possessor is neither by force, stealth nor under the license of the owner”.
There must be continuity of the squatting, and it should be done in the open and with full knowledge of the owner of the property.
Essentially, this means that one cannot play hide-and-seek with the owner of a property and later lay claim on the land.
However, a question that arises is whether the right to property as enshrined in the 2010 Constitution extinguished the doctrine of adverse possession. This notion was rejected by the Appellate Court Judges.
So controversial is the adverse possession doctrine that some countries are still grumbling about it.
It is clear that adverse possession is recognized as a formula with which a person can enter into another’s property and later lay claim to the same.
Adverse possession in its present form in Kenyan law may occasion unsavory results for landowners, but such is the position in law even within the new constitutional dispensation.
The proper recourse would be for the statutes to be carefully researched and developed to cover the mischief of unscrupulous squatters.
It is in the public interest and indeed in the interest of justice that an absentee landlord should not be allowed to hang the sword of Damocles over the heads of landless squatters in such times when the commodity is scarce.
Justice Ouko held that “if it was the intention of the people of Kenya to say enough is enough with this law, nothing would have been easier than to say so loud and clear.
Reform Land Rights
Justice Ouko suggested reforms on Land rights. The judge questioned that: Why should a stranger be permitted to invade private land regardless of the law of trespass, with light to The Trespass Act, section 3 and even after that be rewarded with it for free after 12 years?
Even though Justice Ouko found no justification in encouraging acquisition of land titles through adverse possession, he went on to comment that adverse possession is not inconsistent with the Constitution.
The same position was adopted by Justice M’Inoti on matters to do with adverse possession.
As it is, one can legally possess someone’s property after 12 years of being a squatter.
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