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Adverse Possession

The document outlines the doctrine of adverse possession, detailing its legal basis and essential components, including physical and mental requirements, continuity of possession, and the statutory period of 12 years in Kenya. It emphasizes that possession must be open, notorious, and without the owner's consent, and discusses cases that illustrate these principles. The document also raises questions about the policy arguments for maintaining the doctrine in current laws.

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tabithamuthoni2004
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57 views7 pages

Adverse Possession

The document outlines the doctrine of adverse possession, detailing its legal basis and essential components, including physical and mental requirements, continuity of possession, and the statutory period of 12 years in Kenya. It emphasizes that possession must be open, notorious, and without the owner's consent, and discusses cases that illustrate these principles. The document also raises questions about the policy arguments for maintaining the doctrine in current laws.

Uploaded by

tabithamuthoni2004
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Dr.

Francis Kariuki
Introduction
 Rationale of the doctrine.
 Legal basis: s28(h), LRA; s7(d), Land Act; Limitation
of Actions Act, Cap.22
 Components of adverse possession:
1. Physical requirements-possession must be “open,
notorious, and visible.”
2. Mental requirements-possession must be ‘adverse’ or
‘hostile’, i.e., without the owner’s consent.
3. Continuity of possession.
4. Statutory period, s 7 Limitation of Actions Act,
Cap.22.
5. Application to High Court to be registered as owner, s 38
Limitation of Actions Act, Cap.22.
a. Physical requirements
 The person entering the land must
actually ‘possess’ the land.
 Possession must meet the following
requirements:
a) It must be open, notorious, and visible;
b) It must be exclusive-Johnson Kinyua v
Simon Gitura Rumuri [Nyeri Civil
App. No. 265 of 2005]
c) It must be actual; and,
d) It must be continuous.
Cont…
 Therefore, possession must neither be
obtained by force or stealth/secrecy or
under the licence, permission/authority
of the paper owner. See Mtana Lewa v
Kahindi Ngala Mwagandi [2015] eKLR.
 This is expressed in the Latin maxim,
nec vi, nec clam, nec precario.
b. Mental Requirements
 Possession must be ‘adverse’ or ‘hostile’.
 Intention to dispossess the paper owner-see
Richard Wefwafwa Songoi v Ben Munyifwa
Songoi [2020] KECA 942 (KLR), Appellant was
unable to prove intent to dispossess as he had
no knowledge that the Respondent was paper
owner.
 Possession must be inconsistent with the true
owner’s rights and without the owner’s consent.
 However, possession must neither be by force
or stealth or under the licence of the owner.
c. Continuity of possession
 Adverse possession must be ‘continuous’
throughout the statutory period.
 If the possessor abandons the property, his
possession is deemed to end.
 If the period of 12 years is not continuous or is
interrupted by the owner, the period of adverse
possession is broken and must start all over again.
 Interruption by non-owner does not break
continuous occupation. See Omukaisi Abulitsa v Albert
Abulitsa [2005];
“But where one trespasser removes another trespasser who
is in adverse possession to the owner and continues to
occupy the land, the period of adverse possession is not
broken and the second trespasser is entitled to combine the
period of trespass of the first trespasser to his own.”
d. Length of time period
 The limitation period varies from country to country.
 In Kenya, it is 12 years. See sec. 7, Limitation of
Actions Act, Cap. 32.
 Time stops running when owner asserts their rights-
takes legal action or makes effective entry into the
land-Joseph Gachumi Kiritu v Lawrence
Kabura[1996]
 See Mtana Lewa case.
 See Virginia Wanjiku Mwangi v David Mwangi Jotham
Kamau [2013] eKLR.
 What are the policy arguments for the continued
retention of the doctrine of adverse possession in our
laws?

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