How squatters can kick you out of your land

I bought and legally registered under my name 20 acres of land in Kajiado County more than 18 years ago. I never had intentions of immediately developing the property since I live near my workplace in Nairobi. However, two families moved in and constructed shanties, which I believed would guarantee security to my property – since I rarely visited the investment.

More families moved in, which I did not think would be an issue as I would request them to move out of my fenced property when I was ready to construct my farmhouse upon retirement. I was dumbfounded when I issued a notice to the squatters to move out last month and they ganged up against me arguing that the law gives them legal ownership over my property by virtue of living there for a long time. Is this true?

P. Tololwa, Nairobi

It is true that the law allows squatters to legally claim ownership of land they have continuously lived in for a successive 12 years.

The concept behind property acquisition is that the squatter who takes possession of the property gets a legal title of ownership in line with the Law of Limitations Act. Provisions of the Law of Limitations state 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 a 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 years stay of the adverse possessor.

The principle is in the public interest that a person who has long been in undisputed possession should be able to deal with the land as owner. Ignorance of law is never an excuse and limitation therefore means the extinction of stale claims.

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.

Seasoned tenants and squatters are also taking the landlords head-on, 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. And courts have set precedents by ruling in favour of families that were branded trespassers to the dismay of registered owners.

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