Adverse possession is a means by which someone may acquire title to the land of another person through certain acts over a defined period of time. In Kenya, the concept of adverse possession refers to a situation where a trespasser to land can claim property after the lapse of a determined period of 12 years.

Determining an act of adverse possession

The question would be whether or not the legitimate title holder has been dispossessed, or has discontinued their possession of their lawful title.

For an individual to allege a right of title on land, the person ought to have occupied the land uninterrupted for a period not less than 12 years. They must show by clear and unequivocal evidence that his possession was not permissible. That it was open, with the knowledge of the true owner.

In Kasuve Vs Mwaani Investments limited & 4 others 1 KLR 184, the Court of Appeal restated what a plaintiff in a claim for Adverse Possession has to prove; “In order to be entitled to land by Adverse possession, the claimant must prove that he has been in exclusive possession of the land openly. They should have been habitants as of right without interruption for a period of 12 years. This could be either after dispossessing the owner or by discontinuation of possession by the owner on his own volition”.

The owner of the land must have been dispossessed or has discontinued possession of the property. It is also a well settled principle that a party claiming adverse possession ought to prove that the possession was peaceful, open and continuous. The possession should not have been through force, nor in secrecy and without the authority or permission of the owner.

It is assumed that if one owns property, they have an emotional bond to it. Therefore, they will rise up to defend their title against intruders on his/her property. It is also based on the presumption that people own land for many reasons. Among them economic, and if they could show no interest in in such land for lengthy periods, then they probably did not need it.