Adverse possession: Equitable right or legalised theft?

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By Newton Arori

“Adverse possession allows a trespasser – a person guilty of a tort, or even a crime in the eyes of the law – to regain title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally, baffling” – Justice Bhandari in State of Haryana vs. Mukesh Kumar & Others (2011)
Adverse possession is a process by which the entire ownership of an estate is extinguished by lapse of time. For a claim of adverse possession to uphold in Kenya, it must be demonstrated that there has been open, peaceful but permitted possession of an estate in land for uninterrupted period exceeding twelve years. In other words, such possession must satisfy the requirements of the Latin maxim nec vi, nec clam, nec plesario (no force, no secrecy, no evasion).

In Kenya, this doctrine is buttressed in the Limitations of Action Act, Section 7 of which states, “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”, as well as Section 38 of the same Act which provides, “Where a person claims to have become entitled by adverse possession to land… 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.”

The Court of Appeal of Kenya was especially clear on these requirements in the case of Kinyua vs. Simon Gitura Rumuri (Nyeri Civil Appeal Number 265 of 2005). The case involved a piece of land that had been occupied by the claimant between 1972 and 2003. The said claimant had built a house on the land and substantially developed it. The court allowed the claimant to be registered as the adverse possessor of the land, stating, “With regard to the extent of adverse possession, we think that possession of 8 acres of land for a period of twelve years has been clearly established and that the respondent was in exclusive possession of the piece of land openly, and as of right during all this time. With respect, this is all that the claimant is required to establish.”

The doctrine’s underlying philosophy is that persons should not sleep on their rights for too long, as doing so prejudices the administration of justice. It is argued that persons who have neglected to assert their rights should not be entitled to disturb lengthened enjoyment by another party. This was perhaps best explained by the supreme court of India in the case of Rajender Sigh & others vs. Santa Sigh &Others (1973) INSC 141 in the following words:

“The policy underlying statutes of limitation, spoken of ‘response’ or of ‘peace’…the courts have expressed at least three differing reasons supporting the existence of statutes namely; 1) That long dormant claims have more of cruelty than justice in them, 2) That a defendant might have lost the evidence to dispose a stale claim and 3) That persons with good causes of action should pursue them with reasonable diligence. The object of the law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party’s own inaction, negligence or laches.”

The doctrine of adverse possession has, however, generated a significant amount of controversy in the country.

In the case of Kazungu Moli Chogo & 6 Others vs. Perihan Torun &6 Others (2014) eKLR, the defendant raised a preliminary objection and requested the court to declare Section 38 of the Limitations of Action Act unconstitutional. The basis of the objection was that the said section is unconstitutional to the extent that it purports to deprive the right to property contrary to Article 40(2) of the Constitution, which provides as follows:

“Parliament shall not enact a law that permits the state or any person to arbitrarily deprive a person of property of any description or of any interest or right over, any property of any description…”

The Court opined that for one, the word “enact” refers to legislation made after the coming into force of the Constitution of Kenya 2010, and so cannot apply to the limitations of Action act, which was in force before the constitution of Kenya 2010. Second, that acquisition of land by adverse possession cannot be termed as “arbitrary” since it is done in accordance with the law. The objection was therefore dismissed.

In the case of Mtana Lewa vs. Kahindi Ngala Mwagandi (2015) eKLR, the respondent, Kahindi Ngala Mwagandi, had moved to court seeking a declaration that title to a piece of land had, by operation the principle of adverse possession, devolved to him. The appeal challenged the constitutionality of the doctrine of adverse possession as enshrined in the Limitations of action Act. Counsel for the appellant submitted that the relevant sections of the Act are contrary to the Constitution and therefore null and void. Among the contentions of the respondent was that the Limitation of Action Act violates Article 43 of the Constitution on the economic and social rights since it would impoverish the owner of land.
The appeal was dismissed, with the court holding that the right to property is not absolute and therefore may be limited by statute. It was not lost on the judges, however, that adverse possession is, to an extent, unjust and illogical. Justice Ouko, for instance, cited the Indian case, State of Haryana vs. Mukesh Kumar & Others Petition for Special Leave to Appeal (Civil) no. 28034 of 2011, where Justice Bhandari expressed himself in the following words:

“People are often astonished to learn that a trespasser may take the title of a building or land from the true owner on certain conditions and such theft is even authorised by law…adverse possession allows a trespasser – a person guilty of a tort, or even a crime, in the eyes of the law – to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling.”

In the English case of J.A Pye (Oxford) Ltd vs. United Kingdom (2008) 1 EHLR, the European Court of Human Rights held that adverse possession violated Article 1 of the European Convention of Human Rights Protocol No. 1 for the reasons that first, the consequence is disproportionate, second, that no public interest exception is involved, and third, that the property should not be deprived without compensation. It is worth noting, however, that the decision was later reversed. In the present case, Neuberger J said:

“A frequent justification for limitation periods generally is that people should not be able to sit on their rights indefinitely. However, if as in the present case the owner of the land has no immediate use of it and is content to let another person trespass on the land for the time being, it is hard to see what principle of justice entitles the trespasser to acquire the land for nothing. I believe the result is disproportionate, because it does seem draconian to the owner, and a windfall for the trespasser.”

Conclusion

Reforms required in this area, as observed by Justice Ouko, must include reasonable compensation for the paper owner for the loss of his land, since in the case of squatters and displaced persons; Section 135(3) (b) of the Land Act makes provision for a fund to be used in purchasing private land to settle such class of people. Second, the most appropriate way of hearing the paper owner of the land is by a procedure. In England for example, the owner is given notice on the 10th year to decide his fate with regard to his ownership of the land. Only after the owner fails to take advantage of this window can it be safely concluded that he has lost interest in the property.

Third, 12 years is not sufficient to justify loss of land. During this period the owner of land could be planning a project, and therefore absence from the land does not necessarily imply disinterest in the property.

While there are philosophical and social bases for the adverse possession, the Legislature must strive to strike a balance so that the end result is equitable for both parties involved.

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