A registered title does not always guarantee that a landowner can recover property occupied by another person for an extended period. The Supreme Court’s decision in Kakuzi PLC v Makuyu Club, delivered on 23 October 2026, examines the relationship between informal donations of land, changes in ownership and the acquisition of title through adverse possession.
The judgment is particularly relevant to landowners, property investors and prospective purchasers because it illustrates how an occupier’s rights may evolve over time and why registered proprietors must understand the legal consequences of prolonged occupation.
When a Donation of Land Becomes a Dispute Over Ownership
The dispute concerned approximately 70 acres of land forming part of a larger parcel registered in the name of Kakuzi PLC. Makuyu Club claimed that the land had been donated by the previous owners in 1934 for use as a golf course. The Club developed the property and continued using it after Kakuzi acquired the larger parcel in 1967.
Kakuzi disputed the Club’s claim to ownership, maintaining that the requirements for adverse possession had not been satisfied. The Environment and Land Court ruled in favour of Makuyu Club, and the Court of Appeal upheld that decision. Kakuzi subsequently appealed to the Supreme Court.
The dispute raised a significant legal question: can occupation that began with a donation become adverse to a subsequent registered proprietor, particularly where the donation was never formally transferred and registered?
The Supreme Court’s Approach to Adverse Possession
The Supreme Court dismissed Kakuzi’s appeal and affirmed the Court of Appeal’s judgment.
Under sections 7 and 38 of the Limitation of Actions Act, a person may, subject to the applicable legal requirements, acquire title through adverse possession after the prescribed limitation period. However, the passage of twelve years alone does not establish ownership. The claimant must prove possession that is open, continuous and exclusive, without the owner’s permission, together with the intention to possess the land to the exclusion of others.
The Court distinguished between occupation that is initially permitted and occupation that becomes adverse. A donation ordinarily allows the recipient to enter and remain on land with the donor’s permission. Where the donation is not formally transferred and registered, it does not, by itself, confer legal ownership.
The Court further explained that, in the absence of a legally enforceable interest binding a successor in title, an uncompleted donation lapses when ownership changes. Time may then begin to run for purposes of adverse possession against the subsequent proprietor.
Applying these principles, the Court accepted that time began running when Kakuzi acquired the property in 1967. Makuyu Club remained in continuous and exclusive possession until 2002, approximately 35 years later. The Court found that Kakuzi had not taken effective steps to interrupt the possession within the statutory period and therefore upheld the finding that the Club had acquired the relevant land through adverse possession.
The decision demonstrates that the legal basis of occupation, the effect of a change in ownership and the actions taken by the registered proprietor must be considered together when determining an adverse possession claim.
Why a Title Search May Not Reveal the Full Risk
The judgment has practical implications for conveyancing transactions. A title search establishes important information about registered ownership, but it may not reveal the full history of occupation or whether another person has a potential claim to the property.
A purchaser may therefore find that a third party has occupied part of the land for many years, potentially giving rise to an adverse possession dispute despite the seller’s registered title.
For this reason, due diligence should extend beyond verifying the title. Physical inspection, inquiries into the identity of occupiers and examination of the legal arrangements governing their occupation are also important. Where an occupier claims ownership or has been in possession for an extended period, the potential implications should be assessed before completion.
The nature of the occupation matters. A lease, licence, informal donation and occupation without permission do not necessarily have the same legal consequences. Establishing when occupation began, whether permission remains in force and whether any steps have been taken to recover possession can be essential to assessing the risk.
Protecting Landowners’ Rights: The Importance of Timely Action
The decision also highlights the importance of taking effective action when another person occupies land in circumstances that may give rise to an adverse possession claim.
A proprietor should not assume that simply holding a title deed, knowing about the occupation or sending correspondence will necessarily prevent time from running. Whether particular conduct interrupts adverse possession depends on the circumstances and the applicable legal principles.
Landowners should maintain records of occupation arrangements, monitor the use of their property and seek legal advice promptly when a dispute arises. Depending on the circumstances, effective action may require steps to recover possession or appropriate legal proceedings.
Importantly, the judgment does not establish that every informal donation lapses in every circumstance or that every long-term occupier becomes the owner. The legal effect of an arrangement and the requirements for adverse possession must be assessed on the particular facts.
Conclusion
The Supreme Court’s decision in Kakuzi PLC v Makuyu Club reinforces the importance of examining both registered ownership and the circumstances of actual occupation. It demonstrates that an incomplete donation, a subsequent change of ownership and prolonged possession can have significant consequences for the rights of the parties.
For purchasers and investors, the lesson is to investigate occupation as carefully as title. For registered proprietors, it is to address potential disputes promptly and obtain appropriate legal advice before their rights are affected by the passage of time.
