Makuyu Club v Kakuzi Limited [2019] KEELC 1132 (KLR)
The bottom line
#Kenya's Environment and Land Court gave Makuyu Club ownership of 70 acres its members had used as a golf course since 1934, wiping out Kakuzi's title.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff's use of the golf course was continuous and exclusive for over twelve years
Yes; use since 1934 was continuous, exclusive and undisputed
The Defendant did not contest that the Plaintiff's members used the 72 acres as a golf course since 1934. Minutes dating back to 1934, including 1955 minutes showing members contributing to maintenance, corroborated long use. The Defendant's Managing Director admitted no rent was ever paid since 1967. The 26th March 1996 letter showed the Defendant was not in occupation but only donating support, confirming the Plaintiff's exclusive possession.
Whether the Plaintiff's use was permissive rather than adverse
No; the alleged permission was unsupported and the Defendant's conduct showed the land was treated as the Plaintiff's
DW1 claimed the use was with express consent and that the Defendant supported the Club. However, the 26th March 1996 letter characterised the assistance as a donation, and the Defendant failed to produce accounts showing its own use of the land. The Defendant's Managing Director's 1997 letter acknowledged the land was donated to the Plaintiff before the Defendant purchased it. Permission was therefore not proved.
Whether the Defendant's title to the 70-72 acre golf course portion stands extinguished
Yes; title extinguished by adverse possession and the Plaintiff is entitled to be registered
Applying Sections 7 and 38 of the Limitation of Actions Act and the principles in Wambugu v Njuguna, Mbira v Gachuhi and Celina Muthoni Kithinji v Safiya Binti Swaleh, the court found the Plaintiff's open, peaceful, continuous and non-permissive possession exceeded the statutory period, extinguishing the Defendant's title over the golf course portion.
Legal principles established
#- Adverse possession under the Limitation of Actions Act extinguishes a registered owner's title after twelve years of continuous, exclusive, open and non-permissive use
- A claimant must prove non-permissive, actual, open, notorious, exclusive and adverse use for the statutory period without interruption
Court orders
#- 1.Declaration that the Defendant's title in a portion of land measuring approximately seventy (70) acres out of L.R. No. 11674 I.R. 20386/2 has been extinguished by the Plaintiff's adverse possession for more than twelve years in terms of Section 38 of the Limitation of Actions Act
- 2.Declaration that the Plaintiff has acquired title to the said land by adverse possession for a period of more than twelve years from 1934 to date
- 3.The Plaintiff to be registered as absolute owner of 70 acres, being a portion of L.R. No. 11674 I.R 20386/2
- 4.The Defendant to pay the costs of the suit
- Jurisdiction invoked
- First-instance claim under Sections 7 and 38 of the Limitation of Actions Act (application to court for registration as proprietor by adverse possession)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Duncan Mukabi Kangethe & another v Joseph Ndungu Mwaura [2021] KEELC 3558 (KLR)[2021] KEELC 3558 (KLR)29 Apr 2021
Cite this brief
#Cite this brief
Caselaw, "Makuyu Club v Kakuzi Limited [2019] KEELC 1132 (KLR)", Case Analysis (2019). Originating Summons dated 18th September, 2002 (Machakos/Thika ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1132/eng@2019-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.