In case anyone is interested in the solutions available it either:
1) add to the list view padding, that solution forces you to play around with the fading edge property since it gets sifted because of thee padding. also this method might not work well if your using a transparent background because items will be rendered and visible under the padding area. Although this could be fixed by entering the list into a relative layout and making sure to draw something over that area.
2) add transparent items to the listview for offset and not set them as enabled to avoid dividers, just need to make sure to change getItemCount and getItemTypeCount and so on if your if your item isn't really inside your adapter as per my case.
I went with option two.
Thanks,
Totem.