Randal Swift and Ernest Rutherfoord hoped to start Kenya’s sisal industry when they arrived in Makuyu in 1904. In four years, the Irish pair had 6,000 acres in a place they named Punda Milia where they had at first put 960 acres under sisal.
Punda Milia was a nice place, with thousands of Zebras – and hence the name. A permanent river flowed through the expansive farm.
The sisal industry in East Africa was born out of an experiment here. The two partners also grew coffee at their Mugera Coffee Estate.
This business thrived until 1972 when the Punda Milia and Mugera estates were sold to a co-operative society. Before that, an organisation styled as Punda Milia Self-Help Group emerged, claiming more than 1,000 acres of the farm by adverse possession.
In a case that is now known in legal circles as Kimani Ruchine v Swift Rutherfoord, Justice Kneeler spelt out circumstances under which one can lose his or her land to a squatting party.
Adverse possession principle
This age-old principle has been used by many in Kenya to acquire land from unsuspecting owners.
Did you know that a person who has been at a property for more than 12 years uninterrupted and without the authority of the owner can actually lay claim the same?
This doctrine is embodied in Section Seven of the Limitation of Actions Act.
“An action may not be brought by any person to recover land after the end of 12 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 Acts says.
The principle is based on the logic that the person who makes the best use of land has a superior claim to it than the owner — if that owner never cares for the property.
In his 1977 ruling, Justice Kneller said what is needed is for the applicant “to prove that they have used the land on which they claim as of right”.
He invoked the Latin principle Nec vi, nec clam, nec plecario translated as “no force, no secrecy, no evasion”.
“The plaintiff must show that the owner had knowledge or means of knowing, actual or constructive possession of occupation,” he said.
“The possession must be continuous. It must not be broken for any temporary purposes or by any endeavours to interrupt it or by recurrent consideration.”
Another principle relied on to acquire land via adverse possession is that the registered owner must be have been aware of the trespassing but did not interrupt it for 12 years.
It started when members of Punda Milia Self-Help Group heard that Swift Rutherfoord Ltd was selling its estates for Sh970,000.
Group members refused to subscribe to the co-op, arguing that they owned the 1,000 acres through adverse possession.
Punda Milia Self-Help Group recruited a lawyer who entered a caveat forbidding registration of any dealing with the land unless the transaction was expressed to be subject to their claim. That was on August 6, 1971.
Though the group lost the bid to get a piece of the farm, it had tested the law on adverse possession.
Years later, and with the enactment of the 2010 Constitution, the Court of Appeal was asked in the Mtana Lewa v Mwagadi case to examine the constitutionality of the doctrine of adverse possession with an argument that the 2010 Constitution did not allow for the operation of that doctrine and that Parliament was prohibited from enacting laws that would deprive any person the right to his property.
Another submission in the case was that Article 38 of the Limitations of Actions Act, which regulates adverse possession, violated the right to property “since it would impoverish the owner of the land adversely possessed”.
The argument brought before Justices Kathurima M’Inoti, Milton Asike-Makhandia and William Ouko was that the 2010 Constitution does not allow for the operation of the doctrine of adverse possession and that Parliament was prohibited from enacting legislation that would arbitrarily deprive one of his wealth.
Mtana Lewa was about to lose 16 acres to Kahindi Ngala Mwagandi, who claimed to have squatted on the land for more than 12 years.
The Court of Appeal was being asked to relook at the principle of adverse possession alongside another legal principle ex turpi causa non oritur, literally translated to “it is wrong to allow a criminal to profit from his crime.”
For ages, it has been held by courts that right of action cannot arise out of fraud. The question before the court was where the adverse possession principle sat. Can a person who has trespassed on another’s property claim legal ownership of the same and can the court lend its assistance to such a person?
These were the questions that faced Justice Oscar Angote when he was asked to look at the conundrum that was the Mtana Lewa case.
In his ruling, Justice Angote held that the court still has jurisdiction to deprive a person of his property through the doctrine of adverse possession and that Parliament can enact a law to limit the right to own property.
As such, he said, the court had jurisdiction to hear a claim for adverse possession despite the protection of the right to property as enshrined in Article 40 of the Constitution.
He also refused to declare Section 38 of the Limitation of Actions Act, which tackles adverse possession, as contrary to the Constitution. That is what brought about the appeal.
The three-judge bench was told that land should not be abandoned or left to waste for that would be contrary to the principles of land policy.
Rights and duties
Again, there are rights and duties that come with the ownership of property – and the most important is to put land to economic use.
“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period,” Justice Asike-Makhandia observed.
In order to claim such land, and this is now a legal position, the court stated that “essential prerequisites” should have taken place within the 12 years. The most important of the conditions being that “the possession of the adverse possessor is neither by force, stealth nor under the licence of the owner”.
Also, there must be continuity in the squatting, and it should done in the open and with the knowledge of the owner of the property, the court said.
What that means is that one cannot play hide-and-seek with the owner of a property and later lay claim on the land.
However, a question that arises is whether the right to property as enshrined in the 2010 Constitution extinguished the doctrine of adverse possession. The Appellate Court judges rejected that notion.
“Had the framers of the Constitution intended to root out adverse possession, nothing would have been simpler than to do just that,” the court said in the Mtana Lewa case.
So controversial is the adverse possession doctrine that some countries are still grumbling about it.
The Supreme Court of India in 2012, for instance, made some landmark ruling in the Haryana v Mukesh Kumar case where it said the law of adverse possession is “irrational, illogical and wholly disproportionate”.
The court then asked India to consider making changes to the law.
The European Court of Human Rights, while not outlawing adverse possession, asked the United Kingdom in the JA Pye (Oxford) Ltd v United Kingdom case to smoothen the rough edges.
This forced the UK to come up with legislation that now requires the government to notify a landowner of the intention of an adverse possessor.
The owner is then given two years and two months to either oppose or evict the adverse possessor.
He can only lose the land if he fails to challenge such an application.
That way, it has become hard to lose land to opportunists.
It is clear that adverse possession is recognised as a formula with which a person can enter into another’s property and later lay claim to the same.
“Adverse possession in its present form in Kenyan law may occasion unsavoury results for landowners, but such is the position in law even within the new constitutional dispensation,” Our Court of Appeal observed.
“The proper recourse would be for the statutes to be carefully researched and developed to cover the mischief of unscrupulous squatters.”
“It is in the public interest and indeed in the interest of justice that an absentee landlord should not be allowed to hang the sword of Damocles over the heads of landless squatters in such times when the commodity is scarce.”
A lobby in the United States known as End Adverse Possession Now fights what it calls “legalised land theft”.
Group members campaign to “make it harder for squatters and thieves to take land for free”.
In his written ruling, however, Justice Ouko held that “if it was the intention of the people of Kenya to say enough is enough with this law, nothing would have been easier than to say so loud and clear, leaving no room for conjecture. That perhaps explains why the right to property is not listed among the rights that may not be limited.”
Reform land rights
Justice Ouko also suggested reforms on land rights.
“Why should a stranger be permitted to invade private land regardless of the law of trespass, specifically Section Three of the Trespass Act, and even after that be rewarded with it for free after 12 years?” the judge asked.
Though he found no justification in encouraging acquisition of title through adverse possession, he added that acquisition of property by adverse possession is not inconsistent with the Constitution. The same position was adopted by Justice M’Inoti.
As matters stand, you can legally take somebody’s property after 12 years of squatting.