Kakuzi Limited v Makuyu Club (Suing through Joel Wanoike, Irungu Ndirangu & SK Kirubi as Trustees of the Club) (Civil Appeal 78 of 2020) [2024] KECA 1607 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that Makuyu Sports Club acquired roughly 70 acres of Kakuzi's land through long, open occupation—letters alone cannot stop adverse possession.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned trial court erred when it found that the respondent met the threshold of establishing that it was in adverse possession of the appellant's land for a period of over 12 years as required by statute, and that consequently its adverse possession of the requisite portion of the suit property extinguished the appellant's title
- 2.Whether the learned Judge failed to consider that the appellant asserted its right over the suit property
Key legal issues
#Whether the respondent established adverse possession of approximately 72 acres of the appellant's land for the statutory period of 12 years
Yes. The respondent entered in 1934 and remained in open, continuous and exclusive occupation as a golf course; whether time ran from 1934 or from 1967 when the appellant was registered, the 12-year statutory period was exceeded by the time the suit was filed in 2002.
The Court held that maintaining the 72 acres as a golf course with landscaped land and constructed tee boxes and greens was sufficient proof of occupation and possession. Even accepting there was evidence that Sisal Ltd received payment for the land's use, making time run from 1967 upon registration of the appellant's predecessor, that period to 2002 was 35 years - far beyond the 12 years required. Adverse possession runs against the title, not the current registered owner, by virtue of section 30(f) of the repealed Registered Land Act.
What constitutes an assertion of the registered owner's right sufficient to interrupt adverse possession
The owner's acts must terminate the possessor's possession - physical entry and ejection, or acknowledgment of the owner's title. Letters, including a letter to the Kenya Power and Lighting Company, and continuing acts of support do not interrupt possession.
Relying on Kipketer Togom, Situma v Cherango, Githu v Ndeete and Mount Carmel Investments, the Court held that a letter to a third party did not dispossess the respondent nor interrupt its possession, and acts of supplying water, mowers and paying workers were not acts of assertion. The only attempt to formalize the relationship, in 1999, did not succeed. The sole act testified to - objecting to an electricity connection by writing to KPLC - had no effect of terminating possession.
Whether the respondent had capacity to own land and maintain the suit
The capacity objection failed because the appellant itself was on record stating the respondent owned a four-acre portion registered in its name in the same area.
The Court found the argument untenable since the appellant's own pleadings and evidence acknowledged the respondent's ownership of the club house parcel on LR No 10738, distinct from the golf course land, contradicting the assertion that the respondent lacked capacity to hold immovable property.
Whether the learned ELC Judge exercised his discretion judiciously and considered the appellant's evidence
The Judge considered all the issues in the case and gave findings on each; his judgment was well articulated and correct and could not be disturbed.
Applying the first-appeal mandate from Kenya Ports Authority v Kuston and the deference principles in Jabane v Olenja and Mbogo v Shah, the Court re-evaluated the evidence and found the trial Judge's conclusions were based on the evidence on record and correct principles. The Judge correctly found the respondent's use continuous, exclusive and without the defendant's permission, extinguishing the defendant's title by effluxion of time.
Legal principles established
#- On a first appeal, the Court of Appeal must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
- Adverse possession is an overriding interest running against the title itself, without the need to note it on the register
- To assert one's right to land and stop time running under the Limitation of Actions Act, the owner's action must be one that interrupts and terminates the adverse possessor's possession, such as physical entry and ejection or acknowledgment of the owner's title; letters, notices to quit and communications to third parties do not suffice
- A party claiming adverse possession must prove the possession was peaceful, open and continuous - nec vi, nec clam, nec precario - and not by force, in secrecy, or with the owner's authority or permission
Court orders
#- 1.The appellant's appeal lacks in merit and is dismissed in its entirety
- 2.The judgment of Angote, J., in ELC Suit No 115 of 2017 is upheld and confirmed
- 3.The appellant shall meet the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Thika
- ELC Suit No 115 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (initial suit brought under section 38 of the Limitation of Actions Act, transferred to the ELC)
Relief refused
#The appellant's appeal against the finding that its title to approximately 70 acres of LR No 11674 I.R. 20386/2 was extinguished by adverse possession
The learned Judge considered all the issues and came to the correct conclusion; whether time ran from 1934 or 1967, the statutory 12-year period was met
The appellant's contention that it had asserted its right over the suit property, interrupting the respondent's possession
Letters to third parties and acts of support do not dispossess the adverse possessor or interrupt possession
Costs
The appellant shall meet the costs of this appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The appellants appeal lacks in merit and is dismissed in its entirety;
The judgment of Angote, J., in ELC Suit No 115 of 2017 is upheld and confirmed; and,
The appellant shall meet the costs of this appeal.
It is clear from these cases that to assert ones right to the land, the action must be one that causes the trespasser to cease possession of the property.
adverse possession is an overriding interest, running against the title, without the need to note them on the register.
the fact that the portion of 72 acres is maintained as a golf course, with the landscaped land and constructed tee boxes greens meant exclusively for golf is suficient proof of the fact of occupation and possession
Issues in the judgment
#The judgment alternates between describing the disputed portion as 70 acres (in the OS and the ELC orders) and 72 acres (in the Court's own analysis)
The judgment states the ownership of the suit property between 1934 and 1966 is not clear, while simultaneously recording the respondent's uncontested claim that the land was donated to it by White Settlers in 1934
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kamunge v Koech (Enviromental and Land Originating Summons 10 of 2022) [2026] KEELC 1412 (KLR)[2026] KEELC 1412 (KLR)10 Mar 2026
- Elms v Heard (Environment & Land Case 135 of 2022) [2025] KEELC 3155 (KLR)[2025] KEELC 3155 (KLR)4 Apr 2025
Cite this brief
#Cite this brief
Caselaw, "Kakuzi Limited v Makuyu Club (Suing through Joel Wanoike, Irungu Ndirangu & SK Kirubi as Trustees of the Club) (Civil Appeal 78 of 2020) [2024] KECA 1607 (KLR)", Case Analysis (2024). Court of Appeal Civil Appeal (from ELC Suit No 115 of 2017, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1607/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.