This guide explains the main types of dispute, the forum, and what to do when one arises.
Who this guide is for
This guide is for landowners, buyers, developers, families and businesses caught in a dispute over land or property. If you are buying and want to avoid a dispute, see our guides to conveyancing in Kenya and to buying land and title transfer. For a commercial tenancy dispute, see our guide to evicting a commercial tenant.
The forum: the Environment and Land Court
Land disputes are not heard in the ordinary civil courts. Instead, the Environment and Land Court Act, 2011 established the Environment and Land Court, a specialist court with the same status as the High Court and jurisdiction over disputes about land and the environment. So a claim about title, boundaries, a fraudulent transfer or an eviction is filed there. In addition, the court can refer suitable matters to mediation, which often resolves boundary and family land disputes faster and more cheaply than a full trial.
The common types of dispute
Most land disputes fall into a handful of recurring patterns.
- Ownership and double allocation. Two people hold, or claim, title to the same parcel, often because of errors or fraud in the registration history.
- Boundaries and encroachment. Neighbours disagree on the boundary, or one builds over it, which usually turns on the survey and the registry map.
- Fraudulent transfers. Land is transferred using forged documents or a stolen identity, and the true owner must recover it.
- Access and easements. A landlocked owner needs a right of way, or a right of way is blocked.
- Adverse possession. A long-term occupier claims the land after years of possession.
- Co-ownership and succession. Family members or co-owners fall out over jointly held or inherited land.
Title, fraud and the limits of a certificate
A registered title is the strongest evidence of ownership, and under the Land Registration Act, 2012 the rights of a registered proprietor are protected. But that protection is not absolute. A title can be challenged and set aside where it was obtained by fraud or misrepresentation to which the proprietor is a party, or where it was acquired illegally, unprocedurally or through a corrupt scheme. In our view this is the single most important point in Kenyan land litigation: a certificate of title is powerful, but it does not cure a fraud, and a buyer who ignored the warning signs cannot always hide behind the register.
Adverse possession: the 12-year rule
One of the most misunderstood risks is adverse possession. Under the Limitation of Actions Act, an owner generally has 12 years to recover land from a person in possession. In particular, where someone has been in open, continuous and exclusive possession of land for 12 years, without the owner’s permission, that occupier can apply to the court to be registered as the proprietor. In short, the lesson for owners is practical: do not leave land unattended and unmonitored, because a squatter’s long possession can ripen into a legal claim.
| Dispute | Turns on | Common remedy |
|---|---|---|
| Ownership / double allocation | The registration history and good faith | Declaration of title, cancellation of the wrong title |
| Boundary / encroachment | The survey and registry map | Fixing the boundary, removal of the structure |
| Fraudulent transfer | Forgery and the buyer’s conduct | Rectification of the register, recovery, damages |
| Access / easement | The tenure and prior use | Grant of a right of way, injunction |
| Adverse possession | 12 years of open possession | Registration of the occupier, or eviction |
Remedies
In practice, the Environment and Land Court can grant a range of remedies depending on the dispute: a declaration of who owns the land, an order cancelling or rectifying a wrongful title, an injunction to stop a sale, building or trespass, an order for vacant possession and eviction, and damages. In addition, the court can preserve the position while the case runs, for example by restraining any dealing in the land, which is often the urgent first step.
Common questions
Which court hears land disputes in Kenya? The Environment and Land Court, a specialist court of the same status as the High Court.
Can a registered title be cancelled? Yes, where it was obtained by fraud or misrepresentation, or acquired illegally or unprocedurally.
What is adverse possession? A claim by a person who has been in open, continuous possession of land for 12 years without the owner’s permission, allowing them to be registered as the owner.
How long do I have to bring a claim? Time limits are strict and vary by claim, so act quickly. Delay can defeat an otherwise good case.
Can a land dispute be settled without a full trial? Often yes. The court can refer matters to mediation, which suits boundary and family disputes.
Common pitfalls
For example, the costly mistakes are delaying a claim until a limitation period has run; leaving land unmonitored so an occupier can build an adverse-possession claim; and buying without a proper search and due diligence, then inheriting a fraud in the title. In addition, others fail to secure an early injunction, so the land is sold on to a further buyer while the case drags. Finally, some rely on the certificate of title alone, forgetting that fraud can unravel it.
What you should do now
- First, act quickly, because limitation periods can bar a claim.
- Next, order an official search and gather the registration history and survey.
- In addition, secure the land physically, and consider an urgent injunction to freeze any dealing.
- Meanwhile, preserve every document, because land cases turn on the paper trail.
- Finally, take advice early on whether to litigate in the Environment and Land Court or to mediate.
How OLM Law can help
Our real estate and dispute resolution teams act in land and property disputes before the Environment and Land Court: ownership and boundary claims, fraud and title recovery, adverse possession, access rights, and co-ownership and family land disputes. We move quickly to secure the land and the evidence, and we use mediation where it serves the client. To protect your land, contact John Maina or Kenneth Likoko, Partners, at OLM Law Advocates LLP.
This article is a general guide only and is not legal advice. Please seek advice on your specific circumstances.
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