On January 22, a group of squatters from Kamae near Kenyatta University held a demonstration along the Eastern bypass to protest their intended eviction by the institution.
They were joined by their MP, Waihenya Ndirangu, and Starehe MP Maina Kamanda.
The squatters said they would not budge, arguing that the land was given to them by President Daniel arap Moi in November 2001.
They settled on the land after a presidential directive during a rally in Korogocho that the slum’s dwellers be allocated 70 acres of land in Kamae.
However, Prof Olive Mugenda, the Vice-Chancellor of KU, which owns the land, dismissed the former president’s directive as a declaration with no legal basis.
Trouble began after the university gave the squatters notice to vacate as it is planning to build a Sh2.5 billion children’s hospital on the land. But the squatters said they would not move from their “ancestral land”.
Their MP, Mr Ndirangu, had earlier said in an interview with the Daily Nation that KU should “expand vertically, not horizontally”.
The battle between KU and the squatters is just one among many such others around the country currently, which raises the question as to whether a legal land owner can actually evict squatters who have lived on his or her land long enough to consider it home.
DN2 sought to know where the law draws the line between the need to protect the legal owner of the land, and the principle of equity (fairness and justice) for people who have known a place as home for many years.
“This case is embodied in a reclusive and little-known law called Adverse Possession or Prescription,” explained Dr Jack Mwimali, who specialises in equity and property law.
Dr Mwimali, a senior lecturer at the Jomo Kenyatta University of Agriculture and Technology Law School, defines adverse possession as “possession inconsistent with the title owner, but not under licence (permission) from the legal owner, or by way of trust on his behalf”.
“There must be a denial of the owner’s title in one form or another for possession to be adverse,” he adds.
For this to happen, he explains, the claimant must have lived on the land without permission from the title owner, without stealth or secretly with a conscious view to stealing the land (it must be public knowledge that the claimant lives there), and without force or coercion.
When these conditions are met and the claimant has consistently lived on the land for more than 12 years, Dr Mwimali says, then he/she has a very strong case for adverse possession in court.
He says adverse possession is entrenched in Section 8 of the Limitations of Actions Act and stipulates 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.
The concept has its roots in the Equity and Common Law of England and is based on the equitable doctrine of laches (an unreasonable delay by the plaintiff in bringing the claim), whose main aim is to look at the interests of land occupiers as opposed “paper owners” who might not have any desperate need for the land being claimed on prescription (a method of acquiring a non-possessory interest in land through prolonged use).
It states that failure by a party to assert a right or claim on land in a timely manner can prejudice that party.
This means the title owner might not have had any actual need for the land and thus it’s only fair to give adverse possession to the claimant who has lived and developed the land for more than 12 years.
Dr Mwimali adds that according to the new Constitution, you can acquire right by prescription (adverse possession), and the Land Registration Act provides that prescription overrides interest.
“However, it must be proved that possession was hostile or adverse (without the consent of the owner), without stealth, without force or coercion and for a period of more than 12 years,” explains the lawyer, adding that without these elements, adverse possession cannot be upheld in court.
In the case of KU vs Kamae squatters, Dr Mwimali says the burden of proof lies with both parties if the squatters decide to argue their case based on adverse possession.
“They must prove that their possession was without licence from the legal owner of the land (Kenyatta University), that they didn’t settle on the land stealthily, and that they didn’t force their way into the land. If they satisfy this threshold beyond reasonable doubt, they have a case,” he says.
Meanwhile, he adds, Kenyatta University can argue that it was simply being humane, and that squatters cannot abuse your act of kindness in a way that will prejudice you.
In an opinion piece in the Business Daily six years ago, Ms Anne Kiunuhe, an advocate of the High Court, pointed out that adverse possession tramps (overrides interest) provisions of the law which would otherwise have ensured that the person claiming adverse possession would not have acquired legal title to the property.
“For instance, under the Land Control Act, it is not legally possible for a person who is not a Kenyan citizen to directly acquire agricultural land in Kenya.
“However, if a non-Kenyan citizen is claiming ownership of agricultural land through adverse possession, the restrictions under the Land Control Act do not apply,” she wrote.
Ms Kiunuhe, a critic of the principle, believes that land owners must be informed of the risk of losing their land as a result of such encumbrances.
“Such neglect results in the landowner’s permanent loss of his interest in the property, becoming a mere ‘paper owner’ as opposed to an actual owner,” she noted.
High court Judge Pauline Nyamweya is another fierce critic of the law, which she believes is a colonial hangover from Britain that should be reviewed since the British have already done so.
During a workshop on land issues and the validity of title deeds at Strathmore University in August 2013, Justice Nyamweya called for a review of the law, saying investors risk losing land through prescription.
“The validity of title deeds must be safeguarded,” said Justice Nyamweya, then the head of the High Court’s lands division
“We need to change the law when it comes to adverse possession. Most land is owned by individuals and it is wrong to give it to another person when the owner has its title deed,” argues Ms Rosemary Wachira, who links up land stakeholders.
Kenyatta University Vice-Chancellor Olive Mugenda. KU is planning to build a children’s hospital on part of the Kamae land. PHOTO | ANTHONY OMUYA
Before independence, the area on which Kenyatta University sits was a military facility known as Templer Barracks.
Then, in 1965, the Kenyatta government excised some of the land and set up Kenyatta College (it became Kenyatta University in 1985) on it.
That same year 30 acres of the land now owned by Kenyatta College was given to landless, ex employees of European settlers.
The remaining 80 acres in the Kamae area remained unused until 2001, when President Daniel arap Moi, while addressing a rally in Korogocho, Nairobi, directed that 70 acres of this land be allocated to slum dwellers.
It’s worth noting that the bypass along which the Kamae squatters were protesting cuts through KU’s land.
On one side of the road is a referral hospital under construction by the university while the disputed parcel on the other side is the proposed site for a children’s hospital.
