Why Kenyans must be afraid: This is how squatters can legally acquire your land

A house under construction [Photo: Courtesy]

Owning registered property without spending a cent is a legal reality some seasoned squatters are reaping from.

They are moving to court seeking orders to become registered owners of the land or homes they live in in line with the law on adverse possession.

The concept behind the property acquisition is the squatter who takes possession of the property gets a legal title of ownership in line with the Law of Limitation Act.

Provisions of the Law of Limitation states that anyone who has a legitimate claim in law against another and takes too long to make it is legally barred from it.

Therefore, if a registered property owner fails within 12 years to evict the alleged trespasser from his/her land then the owner is legally barred from recovering possession.

The law on adverse possession gives effect to the policy on ‘registered property owners who sleep on their rights should not be assisted in court to claim their investments’.

It is also justified on the assertion that certainty of title to land is a social need and occupation of land which has long been unchallenged should not be disturbed.

Courts often grant title of such land to the squatter on the premise that the registered owner slept on his rights of ownership.

Adverse possessors must however, prove to the court that they entered the property adversely – without legal title.

It must also be proved that the registered owner of the land was aware that the squatters entered his land without title.

Other requirements are that the legal owner did not interrupt the over 12 year’s stay of the adverse possessor.

Ignorance of law is never an excuse and limitation, therefore, means the extinction of stale claims.

Consequently, property owners should ensure that adverse possessors do not access their land and take legal action before the expiry of 12 years after occupation. Seeking legal redress early would enable the registered owner to evict the alleged illegal occupant through court action.

As the reality of adverse possession sinks, some absentee landlords have recently been at loggerheads with squatters over ownership of their registered property. They have engaged law firms to file suits in court towards evicting the ‘trespassers’ arguing they want to develop their private property.

The seasoned tenants and squatters are also taking the landlords head to head demanding their rights to the controversial property.

It is for similar reasons that majority of families - especially in informal settlements - often move to court to stop planned evictions. Unknown to some landlords, majority of the families they refer to as trespassers can legally take over their property without paying a cent!

And courts have set precedents by ruling in favour of families that were branded trespassers to the dismay of registered owners. The landlords may argue that the law is an ass for transferring for free their registered property to squatters, but that is the law!

 The writer is an advocate of the High Court of Kenya.


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