“Where there is subsequent change of ownership, the initial consent or donation in the instance where there was no transfer lapses automatically, and time starts running against the new owner of the land.” – Mwilu, DCJ & VP, Wanjala, Njoki, Lenaola & Ouko, SCJJ, Kakuzi PLC v Makuyu Club (suing through its Trustees), SC Petition No. E035 of 2025.
Background
In 1934, white settlers set aside about 70 acres of a large estate at Makuyu for Makuyu Club to use as a golf course. Over the decades the Club landscaped the land, built greens and tee boxes, put up a clubhouse and sank a 300-metre borehole. What the Club never received was a transfer and the land was never registered in its name.
In 1967, Kakuzi (then Kakuzi Fibrelands Limited) was registered as proprietor of the wider estate of more than 12,000 acres, held under a long-term grant. Kakuzi said the Club played golf on its land by its permission. It pointed to the equipment, wages and money it had contributed to the course until 1999, and to a lease it proposed in 2001 to formalise the arrangement. The Club’s position was that it had held the land openly and exclusively for decades, and that Kakuzi’s title to the golf course had therefore been extinguished under section 38 of the Limitation of Actions Act.
Both the Environment and Land Court (Angote, J.) and the Court of Appeal found for the Club. The Court of Appeal then certified the matter as one of general public importance. It put a novel question to the Supreme Court: what is the “adverse incident” where an occupier first enters land by consent or donation, without a transfer, and the land later changes hands?
Key Jurisprudential Holdings
A Donation is Permission, and Permission Defeats Adverse Possession
The Court reaffirmed the settled rule that occupation is either by permission or adverse, and the two cannot co-exist. A donee who enters land under a donation enters with the donor’s consent. So long as that consent continues, the donee cannot claim adverse possession, and time does not run until the permission ends. The Court also held that a donation which has not been transferred and registered is an incomplete gift. It may allow the donee to occupy the land, but it does not make the donee the owner.
A Change of Ownership Ends an Unregistered Donation and Starts the Clock
This is the central holding. Since an unregistered donation creates no legally enforceable interest that binds a later owner, it lapses automatically when the land changes hands. From that moment the occupier stays on without the new owner’s permission, and the 12-year limitation period starts running against the new owner. For registered land, time runs from the grant of the certificate of title, because that is when the owner becomes entitled to possession and can act against an intruder. On the facts, the Court found that time began to run in 1967, when Kakuzi acquired the land.
Tolerance is Not Assertion: What Stops Time Running
The Court held that a new owner who merely acknowledges or tolerates the donee’s presence does not stop time running. Only an “adverse incident” does that, meaning unequivocal acts capable of interrupting the occupation, such as physical re-entry, dispossession, legal proceedings, or the occupier’s formal acknowledgment of the owner’s title. Notices and letters are not enough. Kakuzi’s financial support for the course and its 2001 lease proposal came long after the 12 years had expired in 1979, and could not revive a title that had already been extinguished. The appeal was dismissed with costs.
LIKELY IMPLICATIONS FOR STAKEHOLDERS
- Buyers and investors in land: Searching the register is no longer enough. On completion, any unregistered permission, gift or informal arrangement benefiting an occupier lapses, and the limitation period starts running against you. Due diligence should include a physical inspection and an inquiry into everyone in occupation. Within a reasonable time after registration, a buyer should either evict any unwanted occupier or put a written lease or licence in place.
- Landowners and large estates: Goodwill arrangements such as clubs, churches, schools, community facilities or relatives on the land are a hidden risk, particularly after a change of ownership, a restructuring or the transmission of an estate. Document every permission in writing, renew it in the name of the current owner, collect even a nominal rent, and take decisive steps against occupiers who refuse to sign.
- Donees, clubs, institutions and long-term occupiers: While the original donor still owns the land, occupation alone cannot ripen into title. Donees should insist that a gift is completed by transfer and registration. Where the land has changed hands and the new owner has not taken effective steps for 12 years, the occupier may have a viable adverse possession claim.
- Lenders and financiers: Land taken as security may carry undisclosed occupiers whose rights strengthen over time. Credit appraisal and enforcement planning should cover possession as well as title, particularly where the borrower acquired the land recently.
- Personal representatives and corporate groups: Transfers on succession, internal group transfers and acquisitions are all changes of ownership. Permissions granted by a deceased person or a former group entity should be reviewed and regularised promptly.
The Bottom Line
With this judgment, the Supreme Court has settled an open question in Kenyan land law. An unregistered donation protects an occupier from adverse possession only for as long as the donor owns the land. Once ownership changes, the new owner has 12 years to act through re-entry, legal proceedings or a formal acknowledgment of title, and letters and goodwill do not count. The practical message for every landowner is to know who is on your land, put every permission in writing, and act promptly. An owner who neglects its rights for 12 years, as Kakuzi did, may lose the land to the occupier.
Read our analysis of how an incomplete sale agreement can ripen into title by adverse possession for further insight into how prolonged occupation may affect a registered proprietor’s rights.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact Litigation Department at Litigation@wamaeallen.com
About the author
Caxstone specializes in civil, employment and labour disputes, constitutional law, family law and succession, and environment and land matters. He has amassed a wealth of knowledge and experience in litigation which is evident in the successes obtained for clients. He is an active member of the Employment and Labour Relations Court Bar-Bench committee.
Denis Mutugi specializes in Commercial Litigation and Alternative Dispute Resolution.
Denis graduated with a Bachelor of Laws, LLB (Hons) from The University of Nairobi in 2021 and was admitted to the Roll of Advocates of the High Court of Kenya in the year 2023.
Denis has amassed a considerable wealth of experience in conducting legal research on various complex legal matters touching on Commercial, Insurance, Employment and Insolvency law and bankruptcy.
Frankline M. Otieno is a dispute resolution associate, recommended professional and committed to offering sustainable client-centred solutions to legal issues.Frankline is astute in commercial litigation, securities law, banking law, intellectual property litigation, public procurement, land law litigation, Judicial Review and Administrative law litigation, sports law, tax litigation, administrative law, consumer protection law, competition law and constitutional litigation.
