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When adverse possession applies

REAL ESTATE
By | May 21st 2009

By Harold Ayodo

People can legally acquire for free property they have, without interruption from registered owners, occupied continuously for 12 years.

This, according to land law is referred to as adverse possession. There are property owners who have benefited from this legal provision and have acquired large tracts of land.

Registered owners of land cannot hold to claim to such property. Courts of law often grant title of such land to the squatter on the premise that the registered owner slept on his rights of ownership.

Adverse possessors must, however, prove to the court that they entered the property adversely — without legal title.

It must also be proved that the registered owner of the land was aware that the people had entered his land without title.

Other requirements are that the legal owner did not interrupt the over 12-year stay of the adverse possessor.

Adverse possession is in the public interest that a person who has long been in undisputed possession should be able to deal with the land as an owner.

Land law provides that entry upon the land of another person should be through a lease — tenancy, licence or easement.

Property lawyers will concur that land disputes arising from adverse possession are based on the Law of Limitations Act.

The main principles of the Law of Limitations are that anyone who has a legitimate claim in law against another and takes too long to make it is legally barred from it.

Ignorance of law

Ignorance of law is never an excuse and limitation, therefore, means the extinction of stale claims.

Legal scholar Prof Smokin Wanjala says in his book Land Law and Disputes in Kenya that legal rights of action are lost if they are not pursued within the prescribed period.

Wanjala says the law at times refers to as trespassers people who enter others’ property without legal title.

Registered owners of trespassed land can file legal suits before the expiry of 12 years after occupation to have the alleged trespassers ejected.

Seeking legal redress early would enable the registered owner to evict the alleged illegal occupant through court action.

Court of Appeal Judges Justices Philip Tunoi, Erastus Githinji and Onyango Otieno recently set a precedent on adverse possession. The Appellate Judges made the landmark ruling in the case of Dismas Situma vs. Nicholas Cherongo.

Landmark ruling

Situma entered into an agreement for the purchase of 19 acres of land in Bungoma from Cherongo in 1972.

Cherongo gave possession of the land to Situma who had settled on the land with his family before Situma died seven years later.

Joseph Mutafari, Situma’s eldest son, moved to court in 1988 to be registered as the absolute owner by virtue of being in adverse possession for over 12 years.

Mutafari swore in his affidavit that his father had paid the purchase price for the land in full but Cherongo declined to sign the transfer documents.

The Court of Appeal sitting in Nairobi, however, found that the doctrine of adverse possession would not apply and dismissed the case.

Null and void

The Appellate Judges said Mutafari’s father had been in adverse possession before the sale agreement became void (invalid).

Justice Githinji said the parties had delayed to obtain consent of the Land Control Board to the transaction — from June 12, 1971 to May 31, 1979 when Situma died.

The Court of Appeal said the interval was less than the statutory minimum period of 12 years required to establish a claim by adverse possession.

It followed that Situma had not acquired the land by adverse possession by the time of his death and his estate represented by his son Mutafari, was not entitled to the land either.

— The writer is a lawyer

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