Can Adverse Possession Claims Be Raised in Multiple Ways?

A common question in property law is whether a claim for adverse possession can be initiated through methods other than an originating summons. The Court of Appeal recently addressed this in a judgment, referencing Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] eKLR, and confirmed that adverse possession claims can indeed be raised in various forms.

Since this ruling, courts have recognized that such claims can be brought through a plaint (as seen in Mariba v Mariba, Civil Appeal No. 188 of 2002), a counterclaim, or even as a defense. This flexibility was notably applied in Wabala v Okumu [1997] LLR 609 (CAK), where adverse possession was successfully raised as a defense.

However, there is an exception: under Order 37 Rule 7 of the Civil Procedure Rules, a claim must be filed via originating summons when a party seeks to be formally registered as the proprietor of land based on adverse possession. This was clarified in Gulam Mariam Noordin v Julius Charo Karisa, Civil Appeal No. 26 of 2015.

In the present case, the court offered a practical perspective:

"A party in adverse possession, facing a lawsuit for trespass and eviction from the registered proprietor, is entitled to assert their adverse possession claim as a defense. It would be illogical to require them to file a separate suit for adverse possession when an existing case involving the same property is already underway."

This ruling underscores the adaptability of adverse possession claims, allowing defendants to protect their interests efficiently within ongoing litigation, rather than initiating redundant proceedings.

Adapted from: Dickson Ogugu Shem