Amend law allowing squatters to take over land after 12 years

Squatters can take possession of land where they have lived continuously for 12 years if the landowner has not tried to evict them. [iStockphoto]

Besides being inconsistent with the liberal values that underpin our democracy, the adverse possession law is also at variance with some of the laws in our statutes. Specifically, article 40(2(a) of the Constitution prohibits Parliament from enacting a law that allows the State or any individual to dispossess any citizen of their land. Additionally, section 3(1) of the Trespass Act deems it illegal for anyone to enter private land without permission. Not only is the law of adverse possession in conflict with our laws, it effectively allows criminals to profit from crime while punishing an aggrieved landowner for not defending himself.

Going by numerous newspaper reports, the law of adverse possession has facilitated dispossession of many landowners in many parts of the country, especially at the coast. In a typical land scam, conmen working with land officers identify unoccupied land, put up some makeshift structure and then file for adverse possession.

The most celebrated Kenyan case was the Waitiki land saga where squatters invaded land during Likoni land clashes. Although the government interceded, the squatters quickly took over adjacent Pungu Fuel area where they have lived ever since. Unless the government intercedes again, the squatters can easily file for adverse possession.

In Britain, an amendment is now in place that requires the government to notify the landowner of an adverse possession application. Similarly, in a landmark ruling, the Indian Supreme Court declared the adverse possession law illogical and deserving urgent review.

Given the misuse and unconstitutionality of our adverse possession law, Kenya must urgently use the precedent set in these commonwealth countries to repeal this blatantly unconstitutional law.

-Mr Githieya is a political and economic Analyst. [email protected]