Why Your House-boy May Easily Take Your Land

Squatters arrive at the land claimed by Mark Too's family on Saturday, November 19, 2022.
Squatters arrive at the land claimed by Mark Too's family on Saturday, November 19, 2022.
File

The Randal and Rutherfoord principle, largely known as Adverse Possession, is a principle in land ownership that allows a squatter or a servant to take ownership of the process in the event he or she has stayed on the plot for more than twelve years. 

Randal and Rutherfoord’s history dates back to 1904 when two agriculturalists, Randal Swift and Ernest Rutherfoord, who hoped to start Kenya's sisal industry in Makuyu Kenya, were forced to give away their property at no price. 

The Irish pair acquired 6,000 acres in a place they named Punda Milia, and immediately embarked on sisal production on some 960 acres.

The land was named Punda Milia due to its beauty and the presence of thousands of Zebras that grazed and drank water from a permanent river that flowed through the expansive farm.

File image of a property being developed in Kenya
File image of a property being developed in Kenya
File

Randal Swift and Ernest Rutherfoord’s business thrived until 1972 when the Punda Milia was sold to a cooperative society. 

However, a local community group known as Punda Milia Self-Help Group moved to court claiming more than 1,000 acres of the farm by adverse possession.

The case that was later christened Kimani Ruchine v Swift Rutherfoord, now outlines circumstances under which a home servant or squatter can possess the land which they never owned without paying for it.

The Presiding Judge of the 1972 landmark case, Justice Kneeler, spelled out circumstances under which one can lose his or her land to a squatting party.

The adverse possession principle has been used by many in Kenya to acquire land from unsuspecting owners.

Did you know that a person who has been at a property for more than 12 years uninterrupted and without the authority of the owner can actually lay claim the same?

This doctrine is embodied in Section Seven of the Limitation of Actions Act.

"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 to him or, if it first accrued to some person through whom he claims, to that person," the Act states in subsection 1 of section 7.  

It is argued that the person who makes the best use of land has a superior claim to it than the owner -- if that owner never cares for the property.

In the ruling that was rendered in 1977, Justice Kneller noted that what is needed is for the applicant "to prove that they have used the land on which they claim as of right".

While delivering judgment, Justice Kneller invoked the Latin principle Nec vi, nec clam, nec plecario translated as "no force, no secrecy, no evasion".

"The plaintiff must show that the owner had knowledge or means of knowing, actual or constructive possession of occupation," he noted.

"The possession must be continuous. It must not be broken for any temporary purposes or by any endeavors to interrupt it or by recurrent consideration," Justice Kneller added.

A collage of the demolished house in Westlands Nairobi
A collage of the demolished house in Westlands Nairobi
Kenyans.co.ke
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