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LEGAL AID: Can one invoke ‘adverse possession’ in land row?

Wednesday August 14 2019

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Can GK succeed in getting a favourable outcome once he has moved the court? This, again depends on how the facts will be presented before the court. PHOTO | FILE | NATION MEDIA GROUP 

ERIC MUKOYA
By ERIC MUKOYA
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Hi Eric,

I write on behalf of a friend and neighbour.

There is this situation between stepbrothers whereby one of them by the name (W.K) registered himself by deceit, as the proprietor of a parcel of land on which the other (G.K) lives (i.e. born and raised).

W.K has never lived on nor developed the said parcel. It’s way over 12 years since the purported registration & issuance of title to W.K. Whereas G.K has carried out extensive development of the same.

Now, the question is, Can G.K succeed if he moved the court by invoking the doctrine of Adverse Possession. Looking forward to your assistance.

Thanking you in advance.

Albert K. Towett

Answer

Dear Albert

Land is such an emotive issue in Kenya, being the single most important source of production and livelihood.

There are many people who have employed deceit to gain possession of land, but others who through legally recognised means, obtain similar outcome, and this informs this response.

The situation between WK and GK invites us to speak about a specific form of land acquisition and possession process known as adverse possession.

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 an interrupted for a period in excess of twelve (12) years.

Development whilst in occupation ordinarily demonstrates intentions to possess (animus possidendi). 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 (See ELC No. 323 of 2017) advances a counter argument in favour of adverse possession.

On the foregoing, your friend and neighbour (GK): having taken possession of the said land for a period of more than twelve (12) years; having developed it openly; the purported owner (WK) having not taken steps to interrupt such possession; can indeed move the court and invoke the doctrine of adverse of possession.

Can such a matter be deliberated by the court? Yes, if at all GK goes ahead and moves the court by filing a suit. The court never moves from its own motion when seeking to deliberate any matter.

Can GK succeed in getting a favourable outcome once he has moved the court? This, again depends on how the facts will be presented before the court especially witnesses and evidence of his presence on the land for the twelve or more years.

We must remember that Kenya is an adversarial system and sometimes poor legal presentation of facts can ruin a good case. Therefore, this can only be left for the specific court (now Environment and Land court to decide)

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Eric Mukoya is the Executive Director, Legal Resources Foundation Trust. Do you have a legal problem you would like addressed by a lawyer? Please email your queries to [email protected]  

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