Absent landowners risk doctrine of prescription

Court can decide if squatters have stayed uninterrupted, it's theirs

In Summary

• Many Kenyans are struggling to find decent housing while vast lands remain idle

Vast stretch of idle land
Vast stretch of idle land

In 2020, when the Covid pandemic struck, many people had to scale down their lifestyles and businesses their operations. Due to world economies being bartered, austerity measures had to be taken. Common amongst this was salary cuts as economic prospects were not promising. Many people also lost their jobs.

As households were scaling down on their spending, many people sought ways to avoid spending a lot of money on housing. Many people who owned land worked towards building houses, whether permanent or temporary, so they no longer had to remit monthly rent to their landlord.

While for some this process went on smoothly, others would find their land encroached on by squatters. This would lead to protracted battles in court, seeking to evict the squatters. While to many it may seem obvious that such squatters ought to be evicted, there may be instances where the law may grant squatters possession of such land. This is founded under the doctrine of prescription.

The doctrine of prescription (which may also be referred to as adverse possession) provides that, when a person dwells on a parcel of land for a lengthy, continuous, uninterrupted period, they acquire proprietary rights over the property. The period of time in question varies, depending on the jurisdiction. In Kenya, this period is set at 12 years.

There are various reasons that have been propounded in favour of the doctrine. Some of these include: preventing land from falling into disuse and, by extension, allowing land to be put into use, hence facilitating the growth of the economy; protecting occupiers from stale claims, and protection from deprivation of land one has peacefully had for a long time.

It is important to note that, in cases where the possession of land was interrupted, the doctrine of prescription does not apply. Take, for instance, if one made an effort to evict the squatter from the land, the possession will have been interrupted, and hence prescription cannot apply.

As a general rule, adverse possession cannot be claimed on public land. A person who encroaches on public land will be evicted even if they peacefully dwelt on the land for 12 years or more. However, there have been exceptions to this. A case in point was where the Kenya Airports Authority forcibly evicted persons who encroached on their land but this was found to be in violation of their right to housing.

The process of adverse possession involves making an application to the High Court. After the expiry of the 12-year statutory period, the title of the original owner is extinguished. The new owner claiming possession may then make an application to the High Court, seeking to be registered as the proprietor of the land.

The doctrine of prescription has been criticised by some as a provision that unfairly dispossess people of their land. However, if one can stay for more than a decade without paying a visit to their property, it raises questions as to whether they care about it that much. To prevent losing land under this doctrine, private land owners should make it a point to visit the sites where they own land so as to ensure the land is not encroached. It may also be a good idea to have someone stay at the premises to wade off invaders.

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