Acquiring & Losing Land in Kenya

Adverse possession remains to be an emotive legal principle and courts have continued to affirm it as a valid way of acquiring land. Through this principle, a person in hostile possession of another person's land may gain lawful ownership of the land if some specified conditions are proved. We recently represented defendants in Nairobi whose claim of adverse possession was upheld by the Environment and Land Court’s judgment, having found the conditions for the principle to have been sufficiently proved.

The case involved two adjoining properties, one owned by the plaintiffs and the other by the defendants. The properties had been separated by a live kei-apple fence that had been planted by a previous owner of the defendants’ property in 1991. After more than 20 years of occupation of their land, the plaintiffs discovered that the fence separating the properties had been planted in a manner that hived off a sizeable portion of their land into the defendants’ property leaving the plaintiffs’ property smaller than depicted in their property’s title document.

Following a dispute as to who was the legitimate owner of the hived off portion of land, a claim of trespass to recover the land was made by the plaintiffs, whilst the defendants claimed ownership of the disputed portion of land through adverse possession.

The judgment in this landmark case confirms the established conditions for adverse possession. A person who claims adverse possession over a particular piece of land must show that they have been in open and hostile possession of the land to the exclusion of the land’s title holder for a continuous period of 12 years.

One of the key elements of the 12 years time requirement that came into play, in this case, was the common law principle of transferability of possessory rights. This principle allows an adverse possessor to combine the duration of their occupation of land with that of the land’s previous owner. For instance, an adverse possessor who has been in occupation of land for 11 years can successfully claim ownership of the land if it is proved that the previous owner of the land adversely occupied it for at least 1 year. Simply put, a change in ownership of land from one adverse possessor to another does not necessarily break the chain of continuous possession required for adverse possession. 

The ability to combine time for adverse possession underscores the responsibility of prospective landowners to ascertain that the actual acreage of any property they intend to acquire matches the acreage depicted in the title document to the property. With land being a limited resource in Kenya, this judgment is yet another reminder to property owners to regularly check on their properties to timely address any trespass that could eventually lead to the loss of property to adverse possessors.

This alert serves as general guidance and is not intended to constitute specific legal advice. For legal advice with respect to this alert, please contact our Partner, Grace.Kinyanjui@CMS-DI.com.

*Contributors
Brian Gatuguti – Associate, Trisha Shah – Trainee Lawyer