Adverse possession in Kenya is governed by Section 7 of the Limitation of Actions Act

What is Adverse Possession and How Do You Invoke It?

Adverse possession in Kenya is governed by Section 7 of the Limitation of Actions Act (Cap 22). It allows someone to acquire ownership of land if they possess it openly and continuously for more than 12 years without the permission of the legal owner.

Key Requirements for Adverse Possession

1. Continuous and Uninterrupted Possession
   • The claimant must have been in possession for at least 12 years.
   • Possession must be uninterrupted by the legal owner. Interruptions may include being removed by force, fencing, court actions, etc.
2. Open and Notorious Use
   • Possession must be visible and known to the legal owner and the public.
   • Must involve meaningful use like residence or farming. It cannot be hidden or secretive.
3. Exclusive Possession
   • The claimant must use the land as if they are the true owner.
   • Shared possession with others or the legal owner may disqualify the claim.
4. Without the Owner’s Consent
   • The occupation must be adverse to the legal owner’s interests.
   • Possession should not be based on permission, lease, or license.
5. Proof of Possession
   • The claimant must show acts of ownership—cultivation, fencing, building structures, or residence.

Steps to File an Adverse Possession Claim

1. Confirm Eligibility
   • Ensure you meet all requirements: 12 years continuous, exclusive, open use.
2. Gather Evidence
   • Receipts for land rates/taxes
   • Photographs of land developments
   • Witness statements from neighbors/community
3. File a Suit in the Environment and Land Court
   • Hire a lawyer and file an Originating Summons (OS) under Order 37 Rule 7 of the Civil Procedure Rules.
   • Include:
     • Description of the property (title number)
     • Affidavit with possession history
     • Supporting documents—maps, surveys, pictures, receipts
4. Notify the Respondent
   • Serve the legal owner with summons and affidavit.
   • Can be done via WhatsApp, Email, Newspaper, or in person.
   • The owner may respond by opposing the claim.
5. Court Proceedings
   • The court reviews if the claim meets legal standards.
   • The claimant has the burden of proof.
6. Survey and Valuation
   • The court may order a survey or valuation to confirm land size and boundaries.
7. Judgment and Registration
   • If successful, the court issues an order for the land to be registered in the claimant’s name.
   • The claimant must submit the order to the Land Registrar for official registration.

Important Points

• Time Restarting: If the owner reclaims possession, files suit, or acknowledges your occupation within the 12 years, the clock resets.
• No Fraud or Force: The claim must not be based on fraud, coercion, or illegality.
• Public Land: Adverse possession cannot apply to government/public land.
• Co-ownership: Claiming against a co-owner requires strong evidence of exclusion and sole use.

If you’re considering an adverse possession claim, consult an experienced advocate for proper guidance and court representation.

Disclaimer: This content is for general informational purposes and does not constitute legal advice. For specific legal guidance, consult a qualified attorney.

MNW & ADVOCATES LLP
+254733491415
info@mnwlaw.co.ke