The Supreme Court’s 23 October 2026 decision in Kakuzi PLC v Makuyu Club has clarified that decades of open, continuous and exclusive occupation of land can mature into title by adverse possession even when the original entry began by donation or incomplete permission.
The court of last resort has dismissed Kakuzi PLC’s appeal and confirmed that Makuyu Club acquired absolute title by adverse possession to approximately 72 acres plus another 18 acres of adjacent land that forms part of Kakuzi’s larger holding. The judgment, delivered on 23 October 2026 in SC Petition No. E035 of 2025, upholds earlier decisions of the Environment and Land Court and the Court of Appeal.
The dispute concerns a portion of L.R. No. 11674 that Makuyu Club has occupied as a golf course since 1934. White settlers donated the land for that purpose and the club developed it with a course, clubhouse, borehole and other facilities. Kakuzi (through its predecessors) became the registered proprietor in 1967 under a long-term grant. The club argued that its open, continuous and exclusive possession extinguished Kakuzi’s title after twelve years under the Limitation of Actions Act.
The Environment and Land Court (Angote J.) found for the club in October 2019. The Court of Appeal affirmed that decision in November 2024.
Kakuzi took the matter to the Supreme Court after the Court of Appeal certified it as raising a matter of general public importance. The central questions were whether a claim of adverse possession can succeed where the original occupation began by donation or consent without a formal transfer, and whether a later change of ownership restarts or interrupts the clock.
The Supreme Court held that an incomplete donation does not permanently bar an adverse-possession claim. A donation that is never transferred or registered confers only a permission to occupy. When ownership later changes hands, that permission lapses automatically. From the date the new registered owner acquires title, continued possession without fresh permission is inconsistent with the new owner’s rights, and time begins to run.
In this case the clock started in 1967 when Kakuzi became the registered proprietor. The club remained in uninterrupted possession for roughly 35 years until it filed suit. Kakuzi’s later attempts to negotiate a lease or assert control came too late; mere correspondence or delayed formalization does not interrupt the running of time. Only clear acts such as physical re-entry, successful legal proceedings or a formal acknowledgement of title by the occupier can stop the clock.
The Court therefore dismissed Kakuzi’s petition, affirmed the Court of Appeal judgment, and ordered Kakuzi to pay the costs. The practical result is that the club is entitled to be registered as the absolute owner of the 70-acre golf-course portion.
The ruling clarifies the interaction between informal historical arrangements and registered title. Long-standing permissive or donated use does not freeze the legal position forever. Once a new owner appears and fails to take effective steps within twelve years, the occupier can convert long possession into title.
The decision is likely to be cited in other cases where clubs, schools, churches or community groups occupy land that was originally donated by earlier owners and later passed to corporate or private registered proprietors.
That holding now sits directly beside the recent confrontation at Muthaiga Golf Club, where the Kenya Forest Service (KFS) deployed officers onto part of the course and asserted that roughly 21.8 hectares of LR No. 13134/3 fall inside gazetted Karura Forest.
The Muthaiga episode in mid-September 2026 followed a different script but raised the same core problem of long occupation versus a later assertion of title. KFS officers, including armed rangers with dogs, moved onto the Front Nine (holes 2–9). Club chairman Dennis Mwirigi described the action as an invasion that closed the affected holes to members. KFS maintained that the section lies within Karura Forest, which was gazetted as a forest reserve in 1932 and declared a Central Forest in 1964, and that the club had produced no evidence of lawful occupation of gazetted forest land.
Historical correspondence, the agency said, showed the club had previously acknowledged occupying forest land. Access was later restored and the parties were expected to meet, but the unilateral entry had already occurred.
The Makuyu principle limits the room for that kind of sudden repossession. Muthaiga’s occupation of its course stretches back close to a century. If the contested section has been held openly, continuously and exclusively for more than twelve years without KFS (or its predecessor Forest Department) taking effective interrupting steps, the logic affirmed by the Supreme Court creates a serious obstacle to a unilateral claim of repossession. Mere notices, correspondence, or a belated physical entry do not restart the clock once the limitation period has run.
The Court was explicit that only clear acts capable of interrupting the possessor’s occupation stop time from running.
There is an important distinction: Makuyu concerned private registered land, while Karura is gazetted public forest. Kenyan limitation rules treat government and public land more restrictively in some circumstances. Even so, the Supreme Court’s emphasis on the need for timely, effective assertion of rights still constrains an agency that has allowed long, undisturbed use of a developed golf-course section and then seeks to reverse that position by deploying rangers.
The precedent makes it harder for KFS to treat decades of occupation as a nullity that can be cured by a sudden physical takeover.
For Muthaiga and similar clubs the ruling supplies a concrete legal argument: long, open possession of a developed course is not automatically extinguished by a later administrative claim. For KFS and other public bodies it is a caution that inactivity for more than twelve years, followed by an abrupt on-site assertion of title, is unlikely to succeed if the occupier can show the same continuous exclusive use that prevailed in Makuyu.
The proper route remains survey, negotiation or litigation that tests the competing titles, not a unilateral repossession that the Supreme Court has now signalled will be measured against the rules of adverse possession.
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https://t.me/francisgaitho/1583
