High Court Asked to Halt Adverse Possession Claims in Landmark Constitutional Challenge

A constitutional petition has been filed before the High Court of Kenya, seeking to declare the doctrine of adverse possession inconsistent with the Constitution of Kenya, 2010. The petitioner argues that the legal principle, which allows individuals to acquire ownership rights over land through prolonged occupation, infringes upon the right to property guaranteed under Article 40 of the Constitution. The petition specifically challenges Sections 7 and 17 of the Limitation of Actions Act (Cap 22), which underpin adverse possession claims by setting a 12-year limitation period for landowners to recover their property. This landmark challenge seeks conservatory orders to halt all ongoing adverse possession proceedings and prohibit the registration of new titles based on such claims, pending the court's determination of the constitutional questions raised.

The doctrine of adverse possession, a long-standing common law principle, is currently facing a significant constitutional challenge in Kenya. A petition filed before the High Court seeks to invalidate this legal mechanism, arguing that it is fundamentally incompatible with the property rights enshrined in the Constitution of Kenya, 2010. This development has far-reaching implications for land ownership, security of tenure, and the broader legal framework governing real property in the country.

The petitioner, Abdulrasul Swaleh Mohsin, contends that the provisions of the Limitation of Actions Act (Cap 22) that facilitate adverse possession are unconstitutional, particularly in light of Article 40, which protects the right to property. The outcome of this petition will not only redefine the landscape of land law in Kenya but also test the supremacy of the 2010 Constitution against inherited common law doctrines. This article will delve into the legal framework of adverse possession in Kenya, analyze the constitutional arguments presented, and discuss the potential ramifications for legal practitioners and landowners.

Adverse possession in Kenya is primarily governed by the Limitation of Actions Act (Cap 22), specifically Sections 7, 17, and 38. Section 7 of the Act stipulates that an action to recover land cannot be brought after the expiration of twelve years from the date on which the right of action accrued to the person entitled to bring such action. This effectively means that if a person occupies land openly, continuously, and without the owner's permission for a period of 12 years, the original owner's right to recover the land is extinguished, and the adverse possessor may apply to be registered as the new proprietor.

The doctrine, rooted in English common law, requires the claimant to demonstrate actual, open, notorious, exclusive, continuous, and hostile possession for the statutory period. The Land Act, 2012, and the Land Registration Act, 2012, further provide guidance on land ownership and registration processes, with the Land Registration Act recognizing adverse possession as an overriding interest for registered land, though formalizing ownership still requires a court order and subsequent registration. Notably, adverse possession claims cannot be made against public or government land.

The promulgation of the Constitution of Kenya, 2010, introduced a robust Bill of Rights, including explicit protections for property rights under Article 40. Article 40(1) guarantees every person the right to acquire and own property of any description in any part of Kenya. Crucially, Article 40(2)(a) and (b) prohibit Parliament from enacting a law that permits the State or any person to arbitrarily deprive a person of property or to limit or restrict the enjoyment of any right under this Article. This constitutional framework forms the bedrock of the current challenge, as it raises questions about the compatibility of a doctrine that allows for the involuntary loss of property without compensation.

The core of the constitutional challenge lies in the argument that Sections 7 and 17 of the Limitation of Actions Act, by extinguishing a registered landowner's title after 12 years of adverse possession, constitute an arbitrary deprivation of property, contrary to Article 40(2)(b) of the Constitution. The petitioner asserts that the 2010 Constitution fundamentally altered the legal landscape, and the doctrine of adverse possession, not having been expressly preserved, lost its constitutional validity. This argument posits that the doctrine creates an unjust inequality, rewarding unlawful occupation and punishing lawful ownership based on a utilitarian rationale that is no longer constitutionally sound.

Kenyan courts have previously grappled with the interplay between adverse possession and constitutional property rights. In *Mtana Lewa v Kahindi Ngala Mwagandi* [2015] eKLR, the Court of Appeal considered whether Section 38 of the Limitation of Actions Act conflicted with Article 40 of the Constitution. The Appellate Court held that the rights under Article 40 are not absolute and can be limited in accordance with Article 24(2) of the Constitution. It noted that adverse possession was one of the ways permitted in law, under Section 7 of the Land Act No. 6 of 2012 and Section 28 of the Land Registration Act No. 3 of 2012. This suggests a judicial inclination to view adverse possession as a permissible limitation on property rights, rather than an arbitrary deprivation.

However, the current petition seeks to revisit this interpretation, arguing that previous decisions upholding adverse possession post-2010 Constitution were made without proper constitutional authority. The petitioner's argument hinges on the idea that the 'limitation' of property rights contemplated by Article 40(2)(b) does not extend to the complete extinguishment of title without compensation, especially given the emphasis on security of land rights under Article 60(1)(b) of the Constitution. Comparative jurisdictions, such as the United Kingdom, have reformed their adverse possession laws for registered land, introducing notification requirements that provide landowners with an opportunity to object and prevent the loss of their property. This highlights a potential path for Kenya to reconcile the doctrine with modern property rights principles, should the court find the current framework unconstitutional.

The challenge also raises questions about the balance between individual property rights and the broader principles of land policy, which include equitable access to land and sustainable management. While adverse possession has historically been justified on grounds of preventing land from lying idle and promoting productive use, the petitioner argues that the Constitution provides superior and mandated mechanisms to achieve these social interests without violating individual rights. The Environment and Land Court (ELC) has exclusive jurisdiction over land disputes, including adverse possession claims, and its role in interpreting these complex constitutional questions will be critical.

This constitutional challenge to adverse possession presents a pivotal moment for Kenyan land law. Should the High Court rule in favour of the petitioner, it would fundamentally alter a long-standing legal principle, potentially invalidating numerous past land acquisitions and requiring a legislative overhaul. For legal practitioners, the immediate implication is the uncertainty surrounding ongoing and future adverse possession claims. Attorneys advising clients on land matters must closely monitor the proceedings, as the outcome could necessitate a re-evaluation of property acquisition strategies and due diligence processes.

Practitioners should be prepared for potential legislative responses if the court declares the current statutory provisions unconstitutional. This could range from amendments to the Limitation of Actions Act to the introduction of new safeguards for registered landowners, possibly mirroring reforms seen in other common law jurisdictions. The case underscores the dynamic nature of property law in Kenya, particularly in the post-2010 constitutional era, and highlights the ongoing efforts to align inherited legal doctrines with contemporary constitutional values. All stakeholders in the land sector, from individual landowners to developers and financial institutions, should pay keen attention to this landmark constitutional petition.