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

A landmark constitutional petition has been filed before the High Court in Mombasa, Kenya, challenging the legality of the doctrine of adverse possession. Petitioner Abdulrasul Swaleh Mohsin argues that Sections 7 and 17 of the Limitation of Actions Act, which underpin adverse possession claims, are inconsistent with Article 40 of the Constitution of Kenya, 2010, which protects the right to property. The petition seeks conservatory orders to suspend all ongoing adverse possession proceedings before the Environment and Land Court and to prohibit the registration of titles arising from such claims, pending the determination of the constitutional questions. This challenge aims to re-evaluate a long-standing legal principle against the backdrop of Kenya's progressive constitutional framework on property rights.

The doctrine of adverse possession, a long-standing legal principle allowing individuals to acquire ownership rights over land through prolonged occupation, is currently facing a significant constitutional challenge in Kenya. Abdulrasul Swaleh Mohsin has petitioned the High Court in Mombasa, seeking to declare Sections 7 and 17 of the Limitation of Actions Act (Cap 22) unconstitutional. The petitioner contends that these provisions, which facilitate the extinguishment of a registered owner's title through adverse possession, are fundamentally incompatible with the robust protection of property rights enshrined in Article 40 of the Constitution of Kenya, 2010.

This petition is not merely an academic exercise; it carries profound implications for land ownership, security of tenure, and the broader legal landscape in Kenya. Should the High Court grant the requested conservatory orders, all ongoing adverse possession proceedings before the Environment and Land Court (ELC) would be suspended, and the Ministry of Lands and the Land Registry would be barred from processing new titles based on adverse possession claims. The case therefore necessitates a critical examination of the historical underpinnings of adverse possession, its statutory framework, and its uneasy relationship with the constitutional right to property in the post-2010 constitutional dispensation.

This article will delve into the legal framework governing adverse possession in Kenya, analyze the petitioner's constitutional arguments, review relevant judicial precedents, and discuss the potential ramifications of the High Court's decision for legal practitioners and property owners across the country.

The doctrine of adverse possession in Kenya is primarily codified under the Limitation of Actions Act (Cap 22), particularly Sections 7, 13, 17, and 38. Section 7 of the Act bars an action to recover land after the expiration of twelve years from the date the right of action accrued to the person entitled to bring such action. This statutory limitation effectively means that if a person openly, continuously, and exclusively occupies land without the owner's permission for at least 12 years, the original owner may be barred from recovering the land, and the occupier can apply to the Environment and Land Court (ELC) for a declaration of title.

For a claim of adverse possession to succeed, the claimant must prove several key elements: actual possession, which must be open and notorious, exclusive, continuous, and uninterrupted for the statutory period of 12 years, and critically, without the consent of the registered owner. The Land Act, 2012, and the Land Registration Act, 2012, further govern land ownership and registration processes, with the latter recognizing adverse possession as an overriding interest. The Environment and Land Court holds exclusive jurisdiction to hear and determine claims of adverse possession.

However, the Constitution of Kenya, 2010, introduced a robust Bill of Rights, including Article 40, which guarantees every person the right to acquire and own property of any description in any part of Kenya. Crucially, Article 40(2)(b) stipulates that Parliament shall not enact 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 on the basis of any of the grounds specified or contemplated in Article 27(4). This constitutional provision forms the crux of the current challenge, as it raises questions about whether adverse possession, which results in the loss of property without compensation, aligns with these constitutional safeguards.

The petitioner, Abdulrasul Swaleh Mohsin, directly challenges the constitutionality of Sections 7 and 17 of the Limitation of Actions Act, arguing that they are inconsistent with Article 40(2)(b) of the Constitution. Mohsin contends that these sections, by imposing a strict 12-year time limit after which a registered owner's title is extinguished, constitute an arbitrary deprivation of property and an impermissible restriction on property rights, contrary to the constitutional prohibition. This argument posits that the doctrine of adverse possession, as currently operationalized, lost its constitutional validity upon the promulgation of the 2010 Constitution.

This is not the first time the constitutionality of adverse possession has been tested against the 2010 Constitution. In the case of *Mtana Lewa v Kahindi Ngala Mwagandi* [2015] eKLR, the Court of Appeal previously considered whether Sections 7, 9, 13, 37, and 38 of the Limitation of Actions Act contravened Article 40(2)(a) and (b) of the Constitution. The Appellate Court, in that instance, held that the rights under Article 40 are not absolute and can be limited in accordance with Article 24(2) of the Constitution. It concluded that adverse possession did not offend the right to acquisition of property but was a logical consequence of the barring of the right to bring action after the expiry of the limitation period, thereby upholding the doctrine's constitutionality.

The current petition, however, seeks to revisit this interpretation, arguing that the *Mtana Lewa* decision may not have fully appreciated the absolute prohibition against arbitrary deprivation or restriction of property rights under Article 40(2)(b). The petitioner's argument hinges on the idea that losing land without compensation, solely due to the passage of time and another's occupation, is inherently arbitrary. This contrasts with the rationale often cited for adverse possession, which is to prevent land from remaining idle and to reward productive use, while penalizing landowners who 'sleep on their rights.'

Comparative legal perspectives reveal varying approaches. While some jurisdictions, like the UK (through the Land Registration Act 2002), have introduced safeguards such as notification requirements to protect registered owners, others, like India, have considered doing away with the doctrine entirely. This global discourse highlights the ongoing tension between the principle of indefeasibility of title and the policy objectives served by adverse possession. The High Court's decision in Mohsin's petition will therefore be crucial in clarifying the constitutional boundaries of property rights in Kenya and potentially re-aligning the country's land law with its constitutional aspirations.

The constitutional challenge to adverse possession initiated by Abdulrasul Swaleh Mohsin represents a pivotal moment for property law in Kenya. The High Court's determination on the compatibility of Sections 7 and 17 of the Limitation of Actions Act with Article 40 of the Constitution will have far-reaching consequences, potentially reshaping the landscape of land ownership and security of tenure. Should the court find in favour of the petitioner, it could fundamentally alter how property rights are understood and enforced, requiring legislative review of the Limitation of Actions Act and potentially opening avenues for previously dispossessed landowners to reclaim their property.

For legal practitioners, this case underscores the critical importance of understanding the interplay between statutory provisions and constitutional rights. Regardless of the outcome, the petition highlights the need for landowners to remain vigilant in protecting their property, actively monitoring their land, and promptly addressing any encroachments to prevent adverse possession claims from maturing. Conversely, those seeking to claim land through adverse possession must be acutely aware of the strict legal requirements and the evolving constitutional scrutiny. The ultimate decision will provide much-needed clarity on the constitutional limits of adverse possession, influencing future land transactions, dispute resolution, and legislative reforms in Kenya.