[Source: The Standard, by Paul Ogemba]
A recent decision by the Court of Appeal to deny a widow her land and give it to the original owner by way of adverse possession continues to cause anxiety among land owners.
But on the flipside, the decision by Appellate Judges Agnes Murgor and Daniel Musinga has raised the hopes of thousands of landless people who have been staying in idle land for more than 12 years, but are unaware that they can legally own the land by way of adverse possession.
Loise Nduta, a widow, had sued Aziza Said Hamisi for taking her land in Mtwapa, Kilifi County, which had been bought by her late husband in 1972.
The judges ruled that Nduta had no claim to the four-acre land having failed to develop it since 1972 and granted ownership to Hamisi on grounds that she had stayed in the disputed property for more than 12 years and entitled to it by way of adverse possession.
“Since she neglected to take steps to recover the land within 12 years, the law is very clear that her title to the property was extinguished. There is evidence that the original owner has been in quiet possession of the land and we have no reason to interfere with her occupancy,” ruled the judges.
The judges relied on Section 17 of the Limitations of Actions Act which provides that once the period of 12 years of adverse possession has expired without an action to recover the land, the title of the registered owner of the land stands extinguished by the operation of the law.
They also relied on Section 7 of the Act which states that 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 to own the land was granted.
Mwenda Makathimo, a land expert and chairman of the Land Development and Governance Institute (LDGI), says the decision may set a dangerous precedent to allow people invade other’s properties.
“Granting people land ownership by way of adverse possession is a dangerous thing as it can precipitate land invasion that can result into conflict. It is something that goes against the constitution which provides for the right and protection of property,” he said.
According to Makathimo, the Act that provides for adverse possession of land is unconstitutional since it violates constitutional principles on the right to own property. He blamed Parliament for not passing legislation to regulate ownership of idle land.
Stephen Moiko, a range land management expert, however agrees with the court decision, saying the Appellate Judges just affirmed what has been there in the public domain for long, but which Kenyans have been ignorant about.
[Full article: The Standard, by Paul Ogemba]
