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>>>  January 2011:  Is this the end of suits for adverse possession in Kenya?



Is this the end of suits for adverse possession in Kenya?



The 1969 Constitution of Kenya, at Section 75 (6) (a) (vi) recognized that one could lose their property in consequence of any law with respect to limitation of actions.  The Limitation of Actions Act, Chapter 22 Laws of Kenya provides, at Section 7, 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 of action accrued.  Under Section 17 of the same Statute, at the expiration of 12 years the right to recover any land is automatically extinguished.  The person in possession of such land without the consent of the owner of that land may, under Section 38 of the Act, bring an action in the High Court for an order that he should be registered as the proprietor of that land. 


Does the Limitation of Actions Act survive under the new Constitution (2010)?  Article 40 of the new Constitution preserves and protects the right to property.  It expressly provides that Parliament shall not enact a law that permits the state or any person to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description subject to the exceptions stated at Article 40 (3) and subject to the further rider at Article 65 that a non-citizen of Kenya may not own freehold land or a leasehold of more than 99 years.  A reading of Chapter V on Land and Environment with particular bias on Articles 64 (private land) and 68 (legislation on land) reveals that it may no longer be possible under the new Constitution to acquire title to private land or to maintain possession of anotherís land under the Limitation of Actions Act.


I suggest that the Limitation of Actions Act, in so far as it affects right to land may be unconstitutional and null and void under the Transitional and Consequential Provisions in the Sixth Schedule of the new Constitution. Section 7 of that Schedule requires that all law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the new Constitution. As the new Constitution does not recognize suits for adverse possession or defences based on the doctrine of adverse possession it seems that the Limitation of Actions Act continues to exist in our libraries as a mere collection of papers. 


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