Land is an asset that everyone desires to own. It is said to be one of the most promising investments to venture into Kenya. This is due to the fact that land appreciates so fast in Kenya because of the fast-growing development and urbanization.
Some years back, the idea of buying land in Kenya was not so common since families owned large pieces of land and they could pass them down to their sons and daughters. However, the population in Kenya is rapidly growing, resulting in land scarcity. This has led a stiff competition in an attempt to own it.
Apart from a land inheritance from parents and buying, there is another way that was passed by the Kenyan parliament some years back. This is the adverse possession system.
What is adverse land possession? Adverse land possession also referred to as the Squatter’s Rights or homesteading is a founded doctrine in law that allows a person who has unlawfully occupied another person’s land for a continuous period of at least twelve years to legally apply for the rights over the property.
This law is seen as one of the doctrines that legalized theft. It goes against the concept of indefeasibility of title as one is able to register their ownership rights against the proprietor’s title.
A person’s use of the land should display the interest of the person to own it.
This method was borrowed from the UK l2002 law. But from then, the UK has shifted position to protect the rights of the land whose initial owner had acquired the title and in the case of a squatter’s claim, the court has the consent to inform the owner of the accruing action.
In Kenya, there is not yet a distinction between the land whose owner had acquired a title of ownership and that without a title. The Kenyan court also does not take the initiative to inform the first owner instead, the owner is caught by surprise.
Requirements for Adverse Land Possession in Kenya
For a person to qualify for application for the adverse possession claims, the following tests should be met. The possession occupation should be:
- Exclusive and continuous
- Open and notorious
- The possession should be exclusive and continuous. One must have occupied the land to the exclusion of the right owner or others. The possession that is shared with the true owner is not adverse to the true him. It is thus no adverse possession. In the continuous case, the person should occupy the land uninterrupted. If a person possesses the land for a year or two and leaves it and then comes again for another year, that is not continuous and does not qualify for adverse possession. Instead, the possession should be for consequent years without interruption otherwise the duration count will keep starting all over afresh again.In Kenya, the possession should run for a period of 12 years and above. If the statutory period of 12 years has not elapsed, the Kenyan courts will not uphold the claim for the adverse possession. However, if the time has not lapsed in the time of application, the claim is rejected but if the person continues to possess it until the full term, the claim will not be withdrawn but will be processed again.
- The occupation must be without the consent of the owner or hostile to the owner’s title. It doesn’t mean real hostility or confrontation. Anyone who lives on another person’s property is described by law as a trespasser or hostile. The possession should be without the registered owner’s consent.
- Actual possession implies that the person should physically live in the land. They should display the intent to own the land by engaging in the activities that the owner should have also done. The actions of the deceased must change the state of the land; taking actions such as clearing, fencing, cutting timber, pulling tree stumps, running livestock, cultivation, and constructing buildings. He should act as though he was the title owner of the land. Hunting or merely walking in the land is not taking possession of the land.
- In an open and notorious case, it implies that the property is open to all that a trespasser has taken possession of it. He must possess the property in a manner that is capable of being seen. It should be sufficiently visible and apparent to the legal owner that someone may assert the claim. A hidden and secret possession will not be sufficient. It should be
The adverse possession in Kenya is equally good and ill depending on which side of the coin you look at. But considering the fact that the owner of the land can take as long as twelve years without using or even visiting the land, the question is; does that person need that land in the first place?
In many cases, the law has led to chaos and bloodshed. The actual owners are always in total denial of the fact that they remain mere owners of only titles without their lands. They live in bitterness but it serves as a lesson to society.
The government is right to issue out such lands to prevent waste of land and to force landowners to monitor their properties. Enforcing this law may hugely contribute to managing the menace of land inflation where scarcity of property has seen lands rise to unimaginable prices.
The adverse possession carries two faces. It has the advantage and disadvantages parts. This depends on which side one stands on, the real owner, or the adverse possessor. This law is not a good channel to follow in my opinion. However, it awakens property owners to be more cautious with their properties. If you are one of them, monitor your property. You can even give it to a disadvantaged person to live in it and make use of it as you wait for its appreciation. This will help you not to lose your property to squatters.