Listed agricultural company Kakuzi Limited has been allowed to escalate a fight with Makuyu Golf Club over ownership of a 72-acre parcel of land to the Supreme Court.
A bench of Court of Appeal judges agreed with Kakuzi that the issue of adverse possession, which the golf club used to acquire ownership of the land, is a substantial matter of law that requires to be determined by the Supreme Court.
Justices Wanjiru Karanja, George Odunga, and Pauline Nyamweya said the issue of adverse possession is likely to affect a substantial number of members of the public, and in particular buyers of land that is in possession or occupation by third parties.
The judges said the apex court should also clarify the application of the principles of adverse possession.
“We accordingly find… that intended appeal by Kakuzi is certified as raising matters of general public importance, and we accordingly grant Kakuzi Ltd leave to appeal to the Supreme Court against the judgement of this court,” said the judges.
In November last year, the appellate court upheld a decision granting Makuyu club ownership of the land, where the golf club is located.
Through senior counsel Fred Ojiambo, Kakuzi said the Supreme Court should determine whether informal arrangements for use of land, including the charitable right to the use of land, a key feature of Kenya's land use system, would give rise to a claim for adverse possession.
Ojiambo said the court should determine whether landowners who have not revoked their consent will be liable to lose their properties in adverse possession claims and whether the absence of an adverse incident can trigger the running of time for purposes of a claim on adverse possession.
Makuyu club through lawyer David Mereka opposed the case arguing that there was no such informal arrangement between Kakuzi and the club since the property was donated by white settlers as a golf course in 1934, and Kakuzi bought it in 1967 and did not make any efforts to assert its rights. Mereka said Kakuzi was introducing a new term "charity", which was not argued at the Court of Appeal.
The appellate court ruled last year that the club had exclusively used the contested land as a golf course since 1934, even before it was acquired by Kakuzi Ltd, and remained in use after the agricultural firm bought the expansive land in 1967.
Kakuzi Ltd claimed that the members of the Makuyu Club had been using the 72 acres as a golf course with its express knowledge and consent and that of its predecessor.
The company said it has been the one supporting the club by helping in maintenance of the course by supplying diesel, lubricants as well as lending tractors and lawnmowers and paying wages for clubhouse watchmen.
The company further said Kakuzi was the one paying wages of the golf course employees, providing items of equipment to watchmen such as coats and torches, and providing building and maintenance materials.
But in the judgment, Justices Gatembu Kairu, Jessie Lesiit and Grace Ngenye-Macharia said the acts of supplying water to the club, grass mowers, paying workers and supporting through donations and such like activity do not qualify as asserting one's right to property, as it did not have the effect of interrupting the members’ possession, or of dispossessing it of the property.
“We have come to the conclusion that the learned Judge’s judgment cannot be disturbed, that it was well articulated, and that the learned Judge came to the correct conclusion of the case,” said the judges.
