Kakuzi Limited v Makuyu Club
The bottom line
#Kenya's Court of Appeal allowed Kakuzi to take its adverse possession dispute to the Supreme Court, but refused to pause enforcement of the judgment against it.
What this practically means
#Executive summary
#Key legal issues
#Certification of a matter of general public importance under Article 163(4)(b)
The application satisfied the Steyn v Gnecchi-Ruscone test: a novel, substantial question of law arises as to the elements of adverse possession where initial occupation is by consent or donation and there is a subsequent change of ownership, affecting a substantial class of land buyers.
Applying the Steyn principles, the Court found that although adverse possession principles are settled, the question of what constitutes an adverse incident where initial occupation was consensual or by donation, and ownership later changes, is novel and substantial. It transcends the parties because it affects buyers of land in occupation of third parties and clarifies application of adverse possession principles, so certification was warranted.
Jurisdiction to stay execution of the Court of Appeal's own judgment pending Supreme Court appeal
The Court lacks such jurisdiction; upon delivery of final judgment it is functus officio and may not issue stay orders pending an intended appeal to the Supreme Court.
Relying on Dickson Muricho Muriuki v Timothy Kagondu Muriuki, Rule 5(2)(b) of the Court of Appeal Rules confers power only over interlocutory applications pending the main appeal before it, not after judgment. The functus officio principle, grounded in public policy favouring finality, prevents revisiting final orders merely because a party intends to appeal further.
Legal principles established
#- After delivery of final judgment, the Court of Appeal is functus officio and has no jurisdiction to stay execution of its own orders pending an intended appeal to the Supreme Court, absent statutory authority.
- Adverse possession principles, while settled, give rise to a substantial question of law as to what possession is adverse to the interests of a subsequent owner where initial occupation was by consent or donation without transfer and there is a subsequent change of ownership.
Court orders
#- 1.Certification that Kakuzi Limited's intended appeal to the Supreme Court raises matters of general public importance
- 2.Grant of leave to Kakuzi Limited to appeal to the Supreme Court against the judgment of the Court of Appeal (Gatembu Kairu, Lesiit and Ngenye-Macharia, JJA) delivered on 8th November 2024 in Civil Appeal 78 of 2020
- 3.Decline of the prayer for stay of execution of the said judgment
- 4.Each party to bear their respective costs of the application
- On appeal from
- Environment and Land Court at Thika
- ELC Suit No. 115 of 2017
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution - certification that the intended appeal to the Supreme Court involves a matter of general public importance
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kakuzi Limited v Makuyu Club", Case Analysis (2025). Civil Appeal No. 78 of 2020 (Application dated 21st November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1212/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.