EFFECT OF DEATH OF A REGISTERED PROPRIETOR ON LIMITATIONS OF ACTION AND THE DOCTRINE OF ADVERSE POSSESSION

Background

The doctrine of adverse possession, just like other land matters, is an emotive and an often controversial subject.[1] Charles Abrams accurately captured this perennial struggle in his treatise Man’s Struggle for Shelter in an Urbanizing World that:-

Despite man’s unprecedented progress in industry, education, and the sciences, the simple refuge affording privacy and protection against the elements is still beyond the reach of most members of the human race… human history has been an endless struggle for control of the earth’s surface; and conquest, or the acquisition of property by force, has been one of its more ruthless expedients. With the surge of population from the rural lands to the cities, a new type of conquest has been manifesting itself in the cites of the developing world. Its form is squatting, and it is evidencing itself in the forcible preemption of land by the landless and homeless people in search of a haven.[2]

So emotive and chequered is the subject that in most parts of the world, reforms have been called and initiated.[3] Kenya, is one such country that has equally seen challenge mounted on the doctrine albeit unsuccessfully in the case of Mtana Lewa v Kahindi Ngala Mwagandi.[4] The petitioners in this case had sought to declare the doctrine of adverse possession as arbitrary and unconstitutional in the limitation of the right to property.[5] In the end, the three judge bench of the Court of Appeal held that the doctrine was a limitation on the right to property well juxtaposed under the ambit of limitations under the constitution and was neither arbitrary nor unconstitutional.[6]

However, in other jurisdictions such as India, the position is different. The call for reforms on the doctrine has been taken further and consequently the Supreme Court of India declared it an archaic principle.[7] The Court thus recommended that the Union of India relooks at its laws on adverse possession that was inherited from the British and consider abolition or suitable amendments on the law.[8] World over, this is an ongoing debate with the United Kingdom, where both Kenya and India trace the roots of the doctrine, having initiated reforms to its laws taming the arbitrariness of the doctrine.[9] In that regard, the morality and legality of the doctrine, is an ongoing discourse taking root well into the near future.

What is Adverse Possession?

The Court of Appeal succinctly defined adverse possession as: ‘a situation where a person takes possession of land, asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya it is twelve (12) years.[10] Therefore, the doctrine of adverse possession represents one of the instruments of acquisition of title to property by way of limitation of action.[11] Upon the lapse of a specified duration, the interest of a proprietor over a parcel of land is extinguished and the adverse possessor becomes the new proprietor for the parcel of land if unregistered.[12] In registered land however, registered proprietor upon the lapse of twelve (12) years becomes a trustee of the adverse possessor and despite being the registered proprietor, holds the title merely as a trustee for and on behalf of the squatter whose right under the statute of limitation has already crystallised.[13] The right in this case is not extinguished but one becomes a trustee for the adverse possessor awaiting transfer by virtue of the doctrine.

Be that as it may, the registration of an adverse possessor/squatter is however not an automatic process.[14] The squatter seeking to be registered as the proprietor has certain hurdles that he or she must surmount and lead evidence to prove them. An example is that a squatter must prove that:-

  1. That the adverse possessor had dispossessed the proprietor of the land and has been in continuous and adverse[15] occupation for the requisite statutory period;[16] and
  2. That entry under a colour of right claiming title hostile to the true owner and the world, and the entry must be followed by the possession and appropriation of the premises to the occupant’s use done publicly and notoriously.[17]

The person claiming under this doctrine must therefore lead evidence before a court of law in proving the two main ingredients. As a rejoinder, the doctrine is also riddled in other considerations and limitations that are often not straightforward. Other limitations to the doctrine include licence or permission by the registered proprietor.[18] A licensee cannot succeed in a claim of adverse possession.

Further, the timelines for which the doctrine crystallises is also key in the appraisal of the law with regard to this regime. The statutory limitation in Kenya is twelve (12) years. This posits the question on the effect of death of the person whose interest the squatter is adversely occupying or claiming; what is the effect of the death of a registered proprietor on the running of the statutory period of twelve (12) years?

Effect of Death of a Registered Proprietor on Running of Time

In general, the death of a registered proprietor of a parcel of land is no barrier to the running of time under the Limitations of Actions Act. The Act provides that ‘For the purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of the estate of a deceased person is taken to claim as if there had been no interval of time between the death of the deceased person and the grant of letters of administration.’ [19] It therefore emerges that the intention of the Limitation of Actions Act, was to allow the administrator or executor of the estate of a deceased to step into the shoes of the deceased registered proprietor.[20]

An illustration to this principle can be sought in the Environment and Land Court decision in the case of Joseph Kamau Gichuki (Suing as the administrator of the Estate of Gichuki Chege (Deceased) v James Gatheru Mukora & another.[21] The Court rejected the Defendants’ argument that time stopped running in the year 1960 upon the demise of the registered proprietor until the year 1992 when the Administrators applied for Letters of Administration. Thus, when the Administrators of the estate of the deceased obtained Letters of Administration, the property was not available and could not pass to then by transmission, the property had passed to the adverse possessor by dint of the Limitation of Actions Act.[22]

In case of the death of an adverse possessor/squatter, if the right of adverse possession had crystallised, the same passes on to his/her estate and the beneficiaries are entitled to be registered as the proprietors.[23] It therefore means that a ripe right of adverse possession can be transmitted by testacy or intestacy and on the side of the registered proprietor, such property is not available as part of the estate of the deceased once the adverse possession claim has fastened on it.[24]

Conclusion

From the foregoing analysis, it is prudent for administrators of an estate of a deceased proprietor to collect and preserve the estate with the limitation of action in mind. This is informed by the principle that time does not stop running after the demise of the proprietor. There is no freezing of time between the date of death and the date of taking up letters of administration/probate.[25] Adverse possession being a doctrine that still holds sway in Kenya therefore calls for vigilance on the side of administrators/executors of an estate.

For more information and details on the subject, contact the author via d.kiprono@kipkenda.co.ke

* LL.B, B. Com, (Rani Durgavati Vishwavidyalaya – India), PGD (KSL), Managing Partner, Kipkenda & Company Advocates, Advocate of the High Court of Kenya.

[1] See generally, Solome Naliaka Wabwile v Alfred Okumu Musinaka [2020] eKLR; Jackson Mwiti M’Rinyiru v Silas M’Rinyiru Mbui [2020] eKLR.

[2] Charles Abrams, Man’s Struggle for Shelter in an Urbanizing World (The MIT Press, Massachusets 1964) p. 1 & 12 – 24; Republished (part) also as Charles Abrahams, ‘Squatting and Squatters’ in Janet Abu-Lughod & Richard Hay Junior (Eds.), Third World Urbanisation (Routledge Library 2007) P. 293.

[3] See, Henry W Ballantine, ‘Title by Adverse Possession’ (1918-1919) 32 Harvard Law Review 135; Ruth Wangari Kanyagia v Josephine Muthoni Kinyanjui [2017] eKLR, Paragraph 1 -2; J. A. Pye (Oxford) Ltd & Another vs The United Kingdom, European Court of Human Rights, Grand Chamber Application No. 44302 of 2002; State of Haryana vs Mukesh Kumar & Others [2012] AIR SCW 276.

[4] [2015] eKLR.

[5] Ibid; Constitution of Kenya, 2010, Article 40 provides on the right to property.

[6] Constitution of Kenya, 2010, Article 24 provides on the limitation of fundamental rights and freedoms such as the right to property.

[7] See, State of Haryana v Mukesh Kumar & Ors. [2011] INSC 1013 (30 September 2011).

[8] Ibid, Paragraph 31.

[9] See, United Kingdom, Land Registration Act, 2002, Part 9, Sections 96 – 98.

[10] Mtana Lewa v Kahindi Ngala Mwangandi [2015] eKLR, Judgement of Hon. Asike-Makhandia, JA.

[11] See, Brown, Ray Andrews, Treatise on the Law of Personal Property (Callaghan Chicago 1936), Chapter IV, P. 29 – 34.

[12] H L Burgoyne, ‘Title by Adverse Possession’ (1913) 1 Southern Bench and Bar Review 323.

[13] Gabriel Mbui v Mukindia Maranya [1993] eKLR. The High Court held that: ‘Under our law, the limitations on the bringing of actions for the recovery of land make it possible for title to land to be acquired by adverse possession under certain conditions after the expiry of a certain period of time specified by statute. When a land owner has been out of possession, and a stranger has been in possession, for a statutory period sufficient to bear the owner’s right to re-enter or to recover possession by action, the owner’s title, if it is unregistered under any of the land registration statutes is extinguished, but if it is registered title it is not extinguished but the registered proprietor holds it in trust for the person who by virtue of the statute has acquired the title, and the stranger acquires title to the land which is good against all the world including the owner.’

[14] Wilfred Kegonye Babu v Henry Mose Onuko [2019] eKLR. The Court of Appeal sitting at Kisumu noted that: ‘[t]he phrase; “adverse possession” has a restricted legal meaning.  It does not mean that every person in possession of land belonging to another for the statutory period is automatically entitled to the land by adverse possession’; Stake, Jeffrey E., ‘The Uneasy Case for Adverse Possession’ (2001) 89 The Georgetown Law Journal 2419.

[15] Kweyu v Omutut [1990] KLR 709, the Court of Appeal (Ho. Gicheru JA) noted that:- “[t]he adverse character of the possession must be proved as a fact; it cannot be assumed as a matter of law from mere exclusive possession, however long continued. And the proof must be clear that the party held under a claim of right and with intent to hold adversely.”

[16] See, Wambugu v Njuguna (1983) KLR 173.

[17] M’mbaoni M’thaara v James Mbaka [2017] eKLR, Paragraph 46; William Tadeus v Swaleh Jined Bawazir [2019] eKLR.

[18] See, Jandu v Kilipal [1975] EA 222.

[19] Limitations of Actions Act, Cap. 22, Section 16.

[20] See also, Peter Mbiri Michuki v Samuel Mugo Michuki [2014] eKLR paragraph 24.

[21] [2019] eKLR.

[22] See, Limitation of Actions Act, Cap. 22, Section 17, ‘Subject to section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished.’

[23] See, Jeconia Angweyo Omuodo v Charles Ogejo Ochieng [2018] eKLR, Paragraph 25.

[24] See, Mark Pawlowski & James Brown, ‘Adverse Possession and the Transmissibility of Possessory Rights – The Dark Side of Land Registration?’; Burns, Fiona, “Adverse Possession and Title-by-Registration Systems in Australia and England” [2011] 35(3) Melbourne University Law Review 773.

[25] See, Joseph Kamau Gichuki (Suing as the administrator of the Estate of Gichuki Chege (Deceased) v James Gatheru Mukora & another [2019] eKLR.

BP2O3173
DOROTHY CHEPKOECH KIPRONO
Managing Partner, Advocate of the High Court of Kenya

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