Twenty-five residents of Manda Islands have lost a court case to the Kenya Airports Authority (KAA) for the continued occupation of a parcel of land belonging to Manda airport.
The residents had brought a claim to the land with a push for adverse possession. However, Environment and Land Court Judge Justice James Olola found that KAA was the registered owner of the 194 hectares of land in dispute.
According to a ruling by the Court of Appeal in 2005, “Adverse Possession is essentially 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 the assertion of his title for a certain period, in Kenya 12 years.”
The law requires certain thresholds to be met before the application for adverse possession can be granted.
It stipulates that a plaintiff must show they have been in continuous possession of the land for 12 years or more; that such Possession has been open and notorious to the knowledge of the owner and that they have asserted a hostile title to the owner of the property.
However, Justice Olola found that the 12 years had not elapsed by the date of filing the case in 2014 thus a claim for adverse possession was not possible.
In addition, he said the residents’ claims to the land of no basis since a perusal of grant produced in court confirmed it was registered in the name of KAA.
In 1975, the court held that acts of Adverse Possession “must be actual, visible, exclusive, open and notorious,” a statement affirmed by a 2002 case where the court held that “a person who seeks to acquire title to land by the method of Adverse Possession for the applicable statutory period must prove non-permissive or non-consensual actual, open, notorious, exclusive and Adverse use by him or those under whom he claims for the statutory prescribed period without interruption.”
Yet Justice Olola found evidence to show that the residents were made aware of their infringement on the ownership of the land by KAA.
In its defence, KAA had said the continued occupation of the land was illegal and an infringement on its property ownership rights. Furthermore, it said the residents continued occupation of the land would compromise airport safety and security.
“KAA has proved on a balance of probability that it was entitled to the orders brought in the counterclaim,” ruled Justice Olola.
The court issued a permanent injunction compelling the residents to vacate the parcel of land.