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Court of AppealDismissedCourt of Appeal Civil Appeal (from ELC Suit No 115 of 2017, Thika)

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)

Court of Appeal of Kenya
8 November 2024
5,448 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a first appeal against the judgment of Angote, J. of the Environment and Land Court at Thika, which allowed the respondent Makuyu Sports Club Limited's originating summons under section 38 of the Limitation of Actions Act and declared that Kakuzi Limited's title to approximately 70 acres of LR No 11674 I.R. 20386/2 had been extinguished by the club's adverse possession. The club claimed it had occupied the land as a golf course since 1934, when it was donated by White Settlers, using it openly and exclusively. Kakuzi contended the club occupied with its express consent and that it had asserted its title by, among other acts, objecting to an electricity connection and withdrawing maintenance support in a 1996 letter. The Court of Appeal, in a unanimous judgment of Kairu, Lesiit and Ngenye-Macharia, JJA, re-evaluated the evidence in line with its first-appeal mandate. It held that adverse possession is an overriding interest running against the title under section 30(f) of the repealed Registered Land Act, and that whether time ran from 1934 or from 1967 when Kakuzi's predecessor was registered, the statutory 12-year period was comfortably exceeded by 2002. Critically, the Court held that acts of assertion of title must terminate the possessor's possession - physical entry and ejection or acknowledgment of the owner's title - and that letters, including one to the Kenya Power and Lighting Company, and continuing acts of support do not interrupt possession. The appeal was dismissed in its entirety, the ELC judgment was upheld and confirmed, and Kakuzi was ordered to pay the costs of the appeal. The judgment binds lower courts on what constitutes an effective interruption of adverse possession.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the learned Judge failed to consider that the appellant asserted its right over the suit property

Key legal issues

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01

Whether the respondent established adverse possession of approximately 72 acres of the appellant's land for the statutory period of 12 years

Holding

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.

Reasoning

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.

p. 10
02

What constitutes an assertion of the registered owner's right sufficient to interrupt adverse possession

Holding

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.

Reasoning

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.

p. 9
03

Whether the respondent had capacity to own land and maintain the suit

Holding

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.

Reasoning

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.

p. 6
04

Whether the learned ELC Judge exercised his discretion judiciously and considered the appellant's evidence

Holding

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.

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The appellant's appeal lacks in merit and is dismissed in its entirety
  2. 2.The judgment of Angote, J., in ELC Suit No 115 of 2017 is upheld and confirmed
  3. 3.The appellant shall meet the costs of this appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
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

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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

p. 10

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

p. 9

Costs

The appellant shall meet the costs of this appeal

Quotable passages

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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;
p. 10Final orders - dismissal
The judgment of Angote, J., in ELC Suit No 115 of 2017 is upheld and confirmed; and,
p. 10Final orders - affirmation of the ELC judgment
The appellant shall meet the costs of this appeal.
p. 10Final orders - costs
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.
p. 9Assertion of right interrupting adverse possession
adverse possession is an overriding interest, running against the title, without the need to note them on the register.
p. 6Overriding nature of adverse possession
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
p. 5Possession evidenced by use as a golf course

Issues in the judgment

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minor

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)

minor

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.