Adverse Possession Of Land in Kenya
What Is Adverse Possession Of Land in Kenya?
Adverse possession in Kenya is a legal principle that allows a person to acquire lawful ownership of land by being in hostile possession of another person’s land for a certain period of time, and fulfilling specific conditions as required by law.
Under Kenyan law, adverse possession occurs when a person takes possession of land belonging to another person without their permission and continues to use and occupy the land openly and continuously for a period of at least 12 years.
During this time, the adverse possessor must also treat the land as if they are the rightful owner, and must not be challenged or disputed by the true owner of the land.
If these conditions are fulfilled, the adverse possessor may then apply to the courts to obtain legal title to the land.
However, the application must be supported by evidence of continuous, open, and hostile possession, and the court must be satisfied that the true owner of the land has not been occupying or using the land during this time.
Adverse possession is a controversial legal principle, and there are concerns about its potential to encourage land grabbing and other illegal activities.
However, the Kenyan courts have affirmed it as a valid way of acquiring land under certain circumstances, and it remains an important part of the country’s land laws.
What Are The Conditions For Adverse Possession In Kenya?
The conditions for adverse possession in Kenya are:
- Exclusive possession: The adverse possessor must have exclusive possession of the land, meaning that they have physical control over the land and no one else has a right to use or occupy it.
- Open possession: The adverse possession must be open and visible to others, meaning that the possessor uses the land without any attempt to conceal their possession or use of it.
- As of right: The adverse possessor must have possessed the land as if they have the right to possess it. This means that they must have acted as if they are the true owner of the land and have not been occupying it secretly or without any claim of right.
- Continuous possession: The adverse possession must be continuous for a period of at least 12 years. This means that the possessor must have used and occupied the land without interruption for the entire duration of this period.
- Hostile possession: The possession must be hostile, meaning that it is without the owner’s permission or consent. The adverse possessor must not have obtained the land by fraud or other illegal means.
If these conditions are met, the adverse possessor may be entitled to legal ownership of the land.
However, it is important to note that adverse possession can be a complex and controversial legal principle, and there may be other legal considerations that need to be taken into account before a claim can be successful.
It is therefore advisable to seek legal advice before pursuing a claim for adverse possession in Kenya.
What Is The Legal Protection Of Entitlement To Land In Kenya?
In Kenya, the legal protection of entitlement to land is provided through various constitutional and legal provisions.
Article 40 of the Kenyan Constitution guarantees the right to property ownership, including land, and stipulates that no one shall be arbitrarily deprived of their property.
This means that individuals and communities have the right to own and use land without fear of arbitrary confiscation or expropriation.
Article 60 of the Constitution also provides for equitable access to land and the security of land rights. This means that all citizens have a right to access and own land without discrimination and that their land rights should be protected by law.
In addition, the Land Act of 2012 provides for the establishment of a legal framework for the administration and management of land in Kenya, including the registration of title deeds, the resolution of disputes, and the protection of land rights.
The Act also provides for the establishment of the National Land Commission, which is responsible for the management and administration of public land.
Despite these legal provisions, there are still challenges to the protection of land rights in Kenya, particularly for women and marginalized communities. Women, in particular, face challenges due to discriminatory customary practices that limit their ability to own and control land.
However, efforts are being made to address these challenges through legal and policy reforms aimed at promoting gender equality and equitable access to land.
How Do I Get Around Adverse Possession?
Adverse possession is a legal principle that allows someone who has occupied a piece of land without permission to claim ownership of that land after a certain period of time.
To prevent adverse possession, it is important to take certain steps to protect your property rights.
One way to prevent adverse possession is to mark your boundary lines so that others know where your property ends and theirs begins. This can include erecting fences or walls, or even just placing markers or signs to indicate your property lines.
By doing so, you can make it clear that others do not have permission to use your land, and can take legal action if they do.
Another way to prevent adverse possession is to provide written permission for any use of your land.
This can help to establish clear boundaries and prevent any confusion about who has the right to use your property. If you do allow others to use your land, it is important to do so for a limited period of time and with clear terms and conditions to avoid any ambiguity.
Finally, it is important to regularly inspect your property to ensure that no one is occupying it without your permission.
If you do notice someone using your land without permission, you should take action to remove them as soon as possible to prevent adverse possession from occurring.
Overall, by taking proactive steps to protect your property rights, you can prevent adverse possession and ensure that you retain full control over your land.
What Are Squatters Rights In Kenya?
In Kenya, squatters or trespassers can acquire legal rights to occupy someone else’s land if they stay on the property for more than 12 years uninterrupted and without the authority of the owner.
This is known as adverse possession, and it is stipulated under the Limitation of Actions Act, Cap 22 of the Laws of Kenya.
Under this law, if a person has a piece of land for 12 years without the owner’s permission, they may claim ownership of the land. This means that the original owner loses their rights to the land, and the squatter becomes the new owner.
However, it is important to note that this law applies only in certain circumstances. For example, the squatter must have been in open and continuous possession of the land for the entire 12-year period, and must not have been granted permission to use the land by the owner at any time during that period.
Additionally, the owner may still be able to challenge the squatter’s claim of ownership in court.
In recent years, there have been efforts to address the issue of squatters’ rights in Kenya, including legal reforms aimed at providing better protection for landowners and preventing the illegal occupation of land.