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Develop or lose it: Ruling on idle land divides legal opinion

By Paul Ogemba | June 14th 2020 at 00:00:00 GMT +0300

A recent decision by the Court of Appeal to deny a widow her land and give it to the original owner by way of adverse possession continues to cause anxiety among land owners.

But on the flipside, the decision by Appellate Judges Agnes Murgor and Daniel Musinga has raised the hopes of thousands of landless people who have been staying in idle land for more than 12 years, but are unaware that they can legally own the land by way of adverse possession.

Loise Nduta, a widow, had sued Aziza Said Hamisi for taking her land in Mtwapa, Kilifi County, which had been bought by her late husband in 1972.

The judges ruled that Nduta had no claim to the four-acre land having failed to develop it since 1972 and granted ownership to Hamisi on grounds that she had stayed in the disputed property for more than 12 years and entitled to it by way of adverse possession.

Extinguished title

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“Since she neglected to take steps to recover the land within 12 years, the law is very clear that her title to the property was extinguished. There is evidence that the original owner has been in quiet possession of the land and we have no reason to interfere with her occupancy,” ruled the judges.

The judges relied on Section 17 of the Limitations of Actions Act which provides that once the period of 12 years of adverse possession has expired without an action to recover the land, the title of the registered owner of the land stands extinguished by the operation of the law.

They also relied on Section 7 of the Act which states 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 to own the land was granted.

Mwenda Makathimo, a land expert and chairman of the Land Development and Governance Institute (LDGI), says the decision may set a dangerous precedent to allow people invade other’s properties.

“Granting people land ownership by way of adverse possession is a dangerous thing as it can precipitate land invasion that can result into conflict. It is something that goes against the constitution which provides for the right and protection of property,” he said.

According to Makathimo, the Act that provides for adverse possession of land is unconstitutional since it violates constitutional principles on the right to own property. He blamed Parliament for not passing legislation to regulate ownership of idle land.

Stephen Moiko, a range land management expert, however agrees with the court decision, saying the Appellate Judges just affirmed what has been there in the public domain for long, but which Kenyans have been ignorant about.

“It is fair to lose your land by adverse possession. Since land is a tool for production, it is not justified for a person to leave it unused for 12 years. That means the person does not need the land and another deserving person can use it for production,” said Moiko.

He said the decision offers a legal window of opportunity for those who lost their land illegally to reclaim it if it lies idle, and that it should be a cause for worry for absentee landlords who just purchase land and leave it for many years without any development.

In Busia, one Florencio Opilio got a one-acre land from Karoli Panyako without paying the full sale price by way of adverse possession.

According to court records, Panyako agreed to sell to Opilio the one acre-land in 1999 and upon paying half the price, Opilio moved to the land and built a home for his second wife.

However, he did not pay the remaining amount and in 2015, Panyako moved to evict him for failing to honour part of the sale agreement.

Opilio then moved to court and admitted that he had not paid the remaining amount for the land but that he was legally entitled to own it by way of adverse possession having stayed there for more than 12 years.

Justice Anne Omollo agreed with his claim, ruling on April 30 that he was entitled to the land having proved occupation for more than 12 years, and blamed Panyako for sleeping on his rights.

In Chuka, a man lost three acres of his ancestral land to his sister by way of adverse possession after the court ruled that he was to blame for failing to assume his ownership for more than 12 years.

Duncan Kabete claimed he was allocated the land by his father in 1980, but allowed his sister Susan Nyambura to live in the land as he had moved to another town to do business. He returned to the land in 2002 and asked his sister to vacate since he wanted to settle with his family.

Legal custody

But Nyambura went to court to stop the eviction, claiming that she had been residing in the land with her husband for more than 12 years, developed it and was entitled to it by way of adverse possession.

Justice P Njoroge ruled in her favour in March, stating that she was entitled to the three acres by adverse possession. It is not only individuals who have benefited from land ownership by way of adverse possession as institutions too have invoked the provision to gain legal custody of large chunks of land.

The Catholic Church’s Assumption Sisters of Nairobi won against a private developer, Benson Wachira, over a one-acre land by way of adverse possession. The disputed land housed the Kibarage Good News Centre, St Martin’s Primary School, St Martin’s Girls School and St Martin’s Catholic Church.

Wachira claimed he was allotted the land in 1977 for a lease of 99 years and that he had not transferred it to anyone. But the church claimed they took possession in 1980 and developed it, and that it was not until 1993 when Wachira showed up to lay claim.

Lawyer Sam Muga said people have a lot of emotional and sentimental attachment to land they have developed and that it is good practice to allow such people to continue having possession of such land.

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