Adverse Possession and Sale of Land in Kenya: When Does Time Begin to Run?

In Kenya, the general legal position is that where there was a sale of land, a claim for adverse possession will ordinarily not lie — unless certain specific conditions are met. This principle is rooted in the fundamental requirements of adverse possession and the nature of a sale transaction.

The Core Principle

Adverse possession requires possession that is:

• Open and notorious — visible to the world
• Continuous and uninterrupted for at least 12 years
• Exclusive — to the exclusion of the true owner
• Without the permission of the registered owner
• Hostile to the owner's title

A sale agreement usually means the purchaser entered the land with the permission of the owner, which defeats the "hostile" requirement — the very foundation upon which adverse possession rests.

Effect of a Sale on Adverse Possession

During the Subsistence of the Sale Agreement

Time does not run for adverse possession because possession is permissive. The purchaser occupies the land by virtue of the agreement, not in defiance of the owner's title.

After the Completion Period Lapses or the Contract Is Repudiated

Time may start to run only if:

1. The purchaser remains in possession without consent;
2. The vendor does not take steps to recover possession; and
3. The purchaser's occupation becomes inconsistent with the vendor's title.

Where the Purchase Price Is Fully Paid

Kenyan courts are particularly reluctant to allow adverse possession in these circumstances because:

• The purchaser's remedy lies in specific performance, not adverse possession.
• Equity treats the purchaser as having an equitable interest in the property.

Leading Kenyan Authorities

Public Trustee v Wanduru Ndegwa [1984] eKLR

The court held that time for adverse possession does not run while possession is with the owner's consent. Permissive entry is fundamentally incompatible with a claim of hostile occupation.

Wambugu v Njuguna [1983] eKLR

Time starts running only when possession becomes adverse — that is, when permission ends and occupation becomes hostile to the registered owner's title.

Samuel Miki Waweru v Jane Njeri Richu [2007] eKLR

A purchaser in possession under a contract of sale cannot claim adverse possession unless the contract is terminated and possession becomes hostile.

Practical Summary

As a general rule: where there was a sale, adverse possession cannot be claimed. The exception arises only where the sale collapses, consent clearly ends, and the purchaser remains on the land for 12 continuous years thereafter without interruption from the owner.

"Occupation pursuant to a contract of sale is permissive and cannot found a claim for adverse possession unless and until such permission is terminated and the occupation becomes hostile to the registered owner's title for a period of twelve (12) years."