Introduction
Adverse possession is a principle in law that allows an intruder to claim ownership over property after twelve years of occupation. In Maweu vs. Liu Ranching and Farming Cooperative Society 1985 KLR 430 it was stated that:
“…to prove title by adverse possession, it was not sufficient to show that some acts of adverse possession had been committed. It was also to prove that possession claimed was adequate, in continuity, in publicity and in extent and that it was adverse to the registered owner. In law, possession is a matter of fact depending on all circumstances”.
In other words, adverse possession kicks in when an intruder has stayed in the property publicly, but without the permission of the registered owner. That last part is crucial. The Court of Appeal in Samuel Miki Waweru vs. Jane Njeru Richu,Civil Appeal No. 122 of 2001 held that:
“…it is trite law a claim of adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner of, or in (accordance with) provisions of an agreement of sale or lease or otherwise.”
If the registered owner has consented to the occupation of the land, then adverse possession cannot be claimed. If the owner had consented, but the consent expired, then time for the purposes of a claim of adverse possession starts to run when the consent expires.
For example, if one leases a piece of land for twenty years, he cannot claim adverse possession for the twenty years. However, if after the twenty years he continues to stay on the property without renewing the lease, he can claim adverse possession after the thirty second year.
Disputed Sale
In James Maina Kinya v Gerald Kwendaka [2018] eKLR the plaintiff claimed to have purchased property from the defendant in 1983, and occupied the property immediately. The defendant however failed to transfer the property to the plaintiff, prompting the latter to go to court in 1988 seeking orders of specific performance. The court ruled in his favor.
The plaintiff could not enforce that judgment and in 2017 moved to court to seek title of the same property, this time by way of adverse possession. The Environment and Land Court had this to say, quoting Madan JA in Public Trustee vs. Wanduru:
“…. that adverse possession should be calculated from the date of payment of the purchase price to the full span of twelve years if the purchaser takes possession of the property because from this date, the true owner is dispossessed off possession. A purchaser in possession of the land purchased, after having paid the purchase price, is a person in whose favour the period of limitation can run”.
The court noted that a suit can only stop the clock running if it is brought by the registered owner of the property. The court noted:
“It is trite law that time stops running the moment a suit is filed by the title owner. In this case time would have stopped running had the defendant filed an independent suit or a counterclaim in the suit of the Plaintiff. He did not so. In the circumstances therefore, I find that time was running continuously notwithstanding the suit of the plaintiff.”
