Adverse possession as a way of obtaining proprietary rights over land.

Introduction.

Adverse possession is a legal pathway through which a trespasser can acquire title to land by occupying it openly, continuously, and without the owner’s permission for a statutory period of 12 years.

Justice Mn Kullow, in Koros v Masanya (Environment and Land Case 70 of 2018) [2025] KEELC 5598 (KLR) (25 July 2025) quoting in approval the case of Mtana Lewa - v- Kahindi Ngala Mwangandi (2015) eKLR defined it as follows

“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force of stealth not under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.”

Under Kenya’s statutory law, adverse possession is provided for under Section 7 of the Limitation of Actions Act Cap 22 which provides that:

“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to same person through whom he claims, to that person.”

Section 38 grants locus standi to any person claiming to have acquired title to land to apply to the high court for grant of proprietary rights over the suit land. The Section provides that:-

“Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.”

Legal threshold for proving a valid adverse possession claim.

The key essential elements for proving an adverse possession claim were comprehensively highlighted in the case of Gabriel Mbui v. Mukindia Maranya [1993] eKLR. They include:-

1. The person claiming land by adverse possession must make physical entry and be in actual possession or occupancy of the land for the statutory period. The claimant must physically enter and occupy the land continuously for at least 12 years as required by law.
2. The entry and occupation must be with, or maintained under, some claim or colour of right or title made in good faith by the stranger seeking to invoke the doctrine of adverse possession as against everyone else. The occupation must be based on a genuine claim of ownership or right over the land, exercised in good faith. The trespasser must stamp his authority of ownership over the suit land, develop it and primarily be deemed as the legitimate owner by third parties.
3. The occupation of the land by the intruder who pleads adverse possession must be non-permissive use, i.e. without permission from the true owner of the land occupied. The possession must be without the consent, licence, or permission of the lawful owner.
4. The non-permissive actual possession hostile to the current owner must be unequivocally exclusive, and with the evinced unmistakable animus possidendi, that is to say occupation with clear intention of excluding the owner as well as other people. The claimant’s possession must be exclusive, hostile to the owner’s rights, and show a clear intention to possess the land as their own.
5. Acts of user by the person invoking the statute of limitation to found his title are not enough to take the soil out of the owner or his predecessors in title and to vest it in the encroacher or squatter, unless the acts be done which are inconsistent with the owner’s enjoyment of the soil for the purpose for which he intended to use it. Mere occasional use of the land is insufficient; the claimant’s acts must interfere with or contradict the owner’s intended use of the land.
6. The possession by the person seeking to prove title by adverse possession must be visible, open and notorious, giving reasonable notice to the owner and the community of the exercise of dominion over the land. The possession must be open, visible and obvious so that the owner and the public are aware of the occupation.
7. The possession must be continuous uninterrupted, unbroken for the necessary statutory period. The occupation must be continuous and uninterrupted throughout the entire statutory period of 12 years. There should be no eviction attempts in between the occupancy period.
8. The rightful owner or paper title holder against whom adverse possession is raised must have an effective right to make entry and to recover possession of the land throughout the whole of, and during, the statutory period. The registered owner must have had the legal right and opportunity to recover possession during the whole limitation period. He should be the real legitimate and absolute owner of the suit land not a mere licencee.
9. The rightful owner must know that he is ousted. He must be aware that he had been dispossessed, or he must have parted and intended to part with possession. The lawful owner must either know, or be deemed to know, that they have been dispossessed of the land by the trespasser.
10. The land, or portion of the land adversely possessed must be a definitely identified, defined or at least an identifiable portion, with a clear boundary or identification. The absence of a plot or title number need not present any difficulty, nor should it be a bar to establishing a claim of adverse possession. The land claimed must be clearly identifiable and defined, even where there is no specific plot or title number. The trespasser ought to be in position identify the position of land which he is claiming to be legally entitled to by adverse possession.

Once a party has fulfilled the above requirements on a balance of probabilities as demanded by law and to the satisfaction of the court, then the court can order registration of title deed in his favour.

What Documentary prove do you need to have to support the adverse possession claim.

1. Copy of the title deed, official search, or any other document identifying the land. This proves that you already the owner of the land on whom you are depriving ownership rights.
2. Proof of continuous occupation for 12 years or more, such as utility bills, photographs of constructed houses or other developments, building permits, receipts for developments, land rates/rent receipts among others.
3. Names and contacts of witnesses, especially neighbours, village elders, or local administrators who can confirm your occupation.

Conclusion.

Adverse possession saves as a legitimate mode of reclaiming abandoned lands by their true owners. It is a legal avenue of obtaining proprietary rights over land simply by proving efforts of having made it productive.

To prove all the above prerequisites, you need services of seasoned Advocates who will analyze the weight of the available evidence to confirm if it merits proprietary rights over the land.

At Siyasa and Company Advocates, we offer expertise and professional advise to our clients especially on whether their evidential prove will guarantee them proprietary status vide adverse possession Conduct us for further advise.

Disclaimer: “This article is for informational purposes only and does not constitute legal advice. For inquiries, please contact Siyasa and Company Advocates.”

-Contributed by-

-Francis Kitheka-