Sleeping on Your Title: How You Can Lose Land You Never Sold
Most landowners believe that as long as they hold a certificate of title, their ownership of the land is permanent, absolute and cannot simply slip away. Kenyan law says otherwise. Under the doctrine of adverse possession, a person who is not the registered owner can, over time, acquire full legal title to land that was never sold to them, never gifted to them, and never leased to them, simply by occupying it long enough while the true owner does nothing effective to stop them.
A recent Court of Appeal decision, Mohammed Azhar s/o Mohammed Akram (Deceased) v Hardev Kalsi Singh & 4 Others [2026] KECA 1130,illustrates exactly how this happens and exposes a mistake that landowners make constantly without realising it carries any legal consequence at all.
The Legal Rule: Twelve Years of Silence Is What It Takes
Section 7 of the Limitation of Actions Act (Cap 22) provides that an action to recover land may not be brought after the end of twelve years from the date on which the right of action accrued to the person bringing it (or to whoever they claim through).
Section 13 then defines what actually starts that twelve-year clock running and what counts as adverse possession. A right of action to recover land does not accrue at all unless the land is in the possession of someone against whom the limitation period can run, what the Act calls “adverse possession.” If that adverse possession is ever interrupted before the twelve years are up, for instance, if the occupier gives up possession the clock stops, and a fresh twelve-year period would only begin if someone takes adverse possession again.
Section 17 spells out what happens once the twelve years are up. Once the twelve-year period prescribed by the Act has run its course, the title of the person who could have brought the action to recover the land is extinguished outright (subject to certain equitable interests preserved under section 18). This means that the original owner simply loses their legal right to the land.
Section 38 then provides the mechanism for the occupier to formalise their new ownership. A person who claims to have become entitled to registered land by adverse possession may apply to the High Court for an order that they be registered as proprietor in place of whoever is currently registered.
Read together, these four provisions are what allow a person with no purchase, no gift, and no lease to end up as the lawful registered owner of someone else’s land, provided they can show the kind of possession the courts have long required to satisfy the doctrine.
Elements to be satisfied by an Occupier
To succeed in a claim of adverse possession, an occupier must additionally satisfy the elements the courts have developed under this framework — that their possession was:
- Actual — they were genuinely on and using the land, not merely claiming an interest in it;
- Open and notorious — carried out visibly, not secretly or in hiding;
- Exclusive — held by the occupier alone, to the exclusion of the true owner;
- Continuous and uninterrupted — maintained without a break for the full statutory period; and
- Hostile — without the permission, consent, or licence of the registered owner.
The Court in Kenga & 12 Others v Mohamed [2025] KECA 2219 (KLR), which it said “succinctly outlined the elements that must be established for a claim of adverse possession to succeed: a“…a claimant must demonstrate the following elements: the date of entry — when possession of the land commenced; the nature of possession – whether it was exclusive, open, and adverse; knowledge by the true owner that such possession was being exercised; duration of possession; that it continued for at least 12 uninterrupted years; open and undisturbed occupation — that the possession was without secrecy, permission, or interruption.”
What the Court Actually Decided in Mohammed Azhar s/o Mohammed Akram (Deceased) v Hardev Kalsi Singh & 4 Others [2026] KECA 1130
The case concerned a Nairobi property on Nyuki Close, registered to five co-owners as tenants in common. In 1987, a man moved onto the land after one of the registered co-owners failed to repay a debt owed to him. He stayed for the next twenty-five years, occupying the property exclusively, paying the rates and utility bills himself, and making improvements to it. The registered owners took no steps to remove him. It was only in 2012, that one of the co-owners resurfaced, not with a suit to recover the land, but with a demand for Kshs 15 million in back rent, followed by instructions to auctioneers to levy distress on the occupier’s goods for the unpaid “arrears.”
The Court of Appeal upheld the occupier’s claim to full ownership by adverse possession, and in doing so clarified three points that matter to every landowner, not just the parties in this case.
First, forceful or uninvited entry does not disqualify a claim — it is actually part of what “hostile” possession means. The registered owner argued that because the occupier admitted forcing his way onto the land, his claim was tainted from the outset and could not ripen into ownership. The Court disagreed and opined as follows: Hostile entry does not necessarily mean with aggression or conflict, as long as the entry is without permission or consent of the registered owner, it is hostile.
Secondly, chasing rent is legally different from asserting your right to the land, and only the latter stops the clock. The Court held that to interrupt the running of the twelve-year period, an owner must either physically retake possession or file a suit whose actual substance is the recovery of the land itself. In verbatim the Court stated as follows: “The assertion of right must involve either the regaining of entry to the land by the owner or the commencement of a suit whose substance is to regain possession. Any other suit by the owners that is not for purpose of regaining possession of the property would be ineffective in stopping the running of time……The feeble attempts to assert his claim through rent demands did not amount to assertion of an owner’s right as to be recognized by law.”
Third, holding land jointly with others offers no special protection. The registered owner argued that because the land was held by several co-owners as tenants in common, the occupier could not have acquired title against all of them collectively. The Court disagreed and held that: Adverse possession, therefore, in this case succeeds even against the other co-owners since there was no permission or otherwise granted to the 1st Respondent. a person in exclusive possession is presumed to hold that possession on behalf of all co-owners equally. This meant that, an adverse possession claim can succeed against all original co-owners,.
The Practical Lesson for Landowners
A landowner who suspects or knows that someone else is occupying their land without permission cannot simply write letters, demand rent, or send auctioneers and expect that to protect their ownership. None of those steps stop the twelve-year clock. The only actions that do are physically retaking possession, or filing a suit whose specific purpose is to recover the land itself.
This has particular relevance for:
- Owners of undeveloped or vacant land, especially where the owner lives elsewhere and visits infrequently.
- Diaspora landowners, who are often unaware that a caretaker, tenant, or neighbour has quietly extended their use of the land well beyond what was originally agreed.
- Co-owners of jointly held land, particularly where family members hold property together and assume that one relative’s inaction cannot bind the others.
- Landlords who tolerate long-term occupants without a clear, written tenancy agreement, since an undocumented arrangement can later be recharacterised by the occupant as permission-free and therefore hostile possession.
The safeguard is straightforward: monitor land regularly, document any permission given to occupants in writing, and, the moment an occupation becomes unauthorised or contested, act to recover possession through the courts rather than simply pursuing payment.
This article is for general information only and does not constitute legal advice. If you are concerned about unauthorised occupation of land you own, or wish to understand your options for recovering possession, speak to a member of our Litigation & Dispute Resolution team.
