WHAT IS ADVERSE POSSESSION?

Section 7 of the Limitation of Actions Act states 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 some person through whom he claims, to that person. The effect of this provision is that once one has been in adverse possession of land for over 12 years, the registered owner looses his interest in the land to him. The claim on adverse possession must however meet the law requirements before one can be said to be entitled to have the interest in the land transferred to him or her.

Under common law adverse possession has 2 elements:  first, the fact of single exclusive physical possession accompanied by the animus possidendi (an intention to possess the land to the exclusion of all other persons, including the owner). Secondly, the intention must be manifested unequivocally, not necessarily in a hostile manner, to indicate an intention to dispossess the owner.  Thus any form of acknowledgement of the true owner's title will operate to negative such intention. A claim for adverse possession cannot therefore succeed if one is in possession with the permission of the true owner.

In the case of Wambugu v Njuguna (1983) KLR 172 the Court of Appeal stated that in order to acquire land by virtue of the statute of limitation, the claimant must show that the owner has lost his right to the land upon being dispossessed or by the owner discontinuing possession by his volition.

The Court of Appeal stated in that case:

“Where the claimant is in exclusive possession of the land with leave and licence of the appellant (Owner) in pursuance to a valid agreement, the possession becomes adverse and time begins to run at the time the licence is determined.  Prior to the determination of the licence the occupation is not adverse but with permission.  The occupation can only be either with permission or adverse, the two concepts cannot co-exist”. 

This was also the view of the court in Buckinghamshire County Council v Moran [1990]ch.623. It therefore follows that one cannot be said to have been in adverse possession if her occupation of the property was with the permission of the owner.

In the case of Malcom Bell v Daniel Toroitich Arap Moi & Another [2012] eKLR the appellant who had inherited the suit land measuring about 100acres from his father brought a suit seeking, inter alia, a perpetual injunction and an order for eviction against the respondents.  In response, one of the respondents filed a counter claim for adverse possession on the basis that the said respondent had been in continuous and uninterrupted possession of the suit land thereby acquiring title to the same; and that the appellant's claim was time-barred.  The High Court found in favor of the respondents but on appeal, the Court of Appeal held that a claim in adverse possession could not be sustained as the trial court had overlooked the circumstances in which the respondents came into possession – namely, through the permission of the deceased father of the appellant.  The court also restated the position that the burden of proof lies with the person asserting adverse possession.

Similarly in Samuel Miki Waweru v Jane Njeri Richu CA No. 122 of 2001 (UR) the court said:

“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. Further as the High Court correctly held in Jandu  vs Kilipal [1975]EA 225 possession does not become adverse before the end of the period for which permission to occupy has been given.  The principle to be extracted from the case of Sisto Wambugu vs Kamau Njuguna [1982 – 88]I KLR (172)....seems to be that a purchaser of land under a contract of sale in possession of the land with the permission of the vendor (can lay a claim for possession of such land) only after the period of the validity of the contract unless and until the contract has been repudiated...adverse possession starts from the date of the termination of the contract.”  

A claim on adverse possession must meet the common law and statutory threshold of adverse occupation. Any acknowledgement of ownership of land by the registered proprietor or being in possession with the permission of the registered proprietor would defeat adverse possession.