This archive report was first published on 14 August 2019.
Land disputes are a sensitive issue in Kenya, where it is the primary source of production and livelihood.
Eric Mukoya, Executive Director of the Legal Resources Foundation Trust, explores the concept of adverse possession, a form of land acquisition and possession process, in a recent case involving two stepbrothers.
Adverse possession refers to a situation where a person occupies land, asserts rights over it, and the person having legal rights in and over the land omits or neglects to act against such possession.
For adverse possession to succeed, it must be continuous, open, hostile, and uninterrupted for a period in excess of 12 years.
Development while in occupation demonstrates intentions to possess, and the rationale behind the concept is to dissuade ownership of land for speculative purposes.
Article 40 of the Constitution of Kenya may hold a different view, but recent cases in the High Court, such as ELC No. 323 of 2017, advance a counter argument in favor of adverse possession.
According to Mukoya, a friend and neighbor (GK) can indeed move the court and invoke the doctrine of adverse possession, having taken possession of the land for more than 12 years, developed it openly, and the purported owner (WK) having not taken steps to interrupt such possession.
However, the outcome depends on how the facts will be presented before the court, especially witnesses and evidence of GK's presence on the land for the 12 or more years.
Kenya is an adversarial system, and poor legal presentation of facts can ruin a good case, leaving the outcome to the specific court to decide.
