Our courts have lately been entering verdicts in support of adverse possession. Either they are getting bolder; else Kenyans are belatedly waking up to this legal opportunity. In March this year, a Malindi court upheld a prayer by some 240 squatters who sought to acquire land from a housing firm through adverse possession. And just recently, a widow lost a Ksh100 million worth piece of land in Mtwapa on account of adverse possession. A Mombasa court observed that the widow had failed to claim the property since it was acquired by her husband. The land had never been occupied or developed since it was purchased in 1972. Therefore, the original owner, who had remained in quiet possession all along, had acquired title to it by way of adverse possession. And just last week, the Court of Appeal ruled that public land cannot be acquired through adverse possession.

Adverse possession is one of the most painful ways of dispossession. Because no consideration of any kind is paid to the to the original land owner! Adverse possession has been part of our laws all along. But many land owners are totally unaware about it. And one can understand them. Landowners cannot be expected to be familiar with the myriad provisions in our land laws.

So what is adverse possession? A look through our Land Act will reveal that prescription is one of the ways through which one may acquire title to land in Kenya. As used in this context, prescription is the process of making a claim to land by long use and enjoyment. This without having had to use any force, or experiencing any interruption to the use from the owner. Our Limitation of Actions Act further provides specifics on timelines. Under this law, once a period of 12 years elapses without an action to recover the land, then the title of the registered owner stands extinguished by the operation of the law. This is why it is commonly referred to as acquisition of title by adverse possession. One simply sits on another’s land, continues to quietly enjoy its use, and through this adverse act, acquires legal title to it. Once the court is so moved and necessary evidence adduced, then the law obliges it to issue orders to have the original owner transfer title to the claimant.

I suspect that some readers, particularly those of us who travel out of the country or hang for long without occupying or using their urban or rural land, must be protesting the inclusion of this kind of provision in our laws. They may be right. The doctrine may never have been part of our cultural practice. But it was bundled into our statutes from English Common law from which quite a lot of our jurisprudence was borrowed. While elites and absentee land owners may loathe it, many landless Kenyans love it. Why? Because it gives them a legal window through which to obtain legitimate rights to land! Listening to people from the Coast, and even some scholars engaged in seeking solutions to the coast land problem, adverse possession is viewed as a most strategic instrument. We may therefore see its increased application in claiming land from absentee landlords along the coast forwards.

So as long as the provision remains part of our laws, what lessons can we draw? That it behooves every land owner to exercise vigilance in protecting their land. If they must allow anyone to occupy or work it, there must be unequivocal evidence, written or oral, that they do so with permission. Then it also pays to put your land to some use, to keep visiting and keep out unauthorized occupiers.

But it should be noted that adverse possession is not applicable to public land within Kenya’s jurisdiction.