Opany & another v Okech (Suing as Legal Representative of the Estate of the Late Martin Okech Oyange) & another (Environment and Land Appeal E016 of 2024) [2025] KEELC 6857 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that an invalid land sale agreement does not defeat an adverse possession claim, but Magistrates' Courts cannot hear such claims.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the validity of the sale agreement affected the claim for adverse possession
- 2.Whether the Appellants proved the elements of adverse possession
- 3.Whether time stopped running by dint of the restriction placed by the Chief Land Registrar
- 4.Whether the trial court had jurisdiction to entertain the claim for adverse possession
- 5.What orders should issue as to the appeal and costs
Key legal issues
#Whether invalidity of the sale agreement defeats adverse possession
It does not; adverse possession does not depend on the validity of the transaction under which entry occurred
Both trespass and adverse possession begin with entry onto another's land; adverse possession focuses on the true owner's rights and operates as a defence to trespass. The court adopted dictum in Onzere v Nanyama that the doctrine's parameters allow no outcome other than loss of land through adverse possession, irrespective of the legality of the sale.
Whether the Chief Land Registrar's restriction stopped time running
It did not; the restriction only barred dealings before registration and could not bar a post-registration adverse possession claim
Adverse possession runs with the land, not the register. Under sections 37 and 38 of the Limitation of Actions Act the title is held in trust for the possessor until a court order vests it. Time would stop only if the registered owner took action to assert ownership under section 13(2).
Jurisdiction of the Magistrates' Court over adverse possession counterclaims
The trial court lacked jurisdiction; the counterclaim was not properly before it and stands dismissed on that ground
Following the Court of Appeal in Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti, claims for adverse possession are not included in Section 9(a) of the Magistrates' Court Act; only the Environment and Land Court may determine them. A counterclaim is a separate suit, and jurisdiction may be raised even on appeal.
Legal principles established
#- The invalidity of a sale agreement does not defeat a claim of adverse possession
- A restriction registered by the Chief Land Registrar does not stop time running for adverse possession once the land is registered; adverse possession runs with the land and not the register
- Only the Environment and Land Court has jurisdiction to hear and determine claims for adverse possession; Magistrates' Courts lack such jurisdiction under Section 9(a) of the Magistrates' Court Act
- A point on jurisdiction may be raised at any stage of proceedings, even on appeal
Court orders
#- 1.The appeal is dismissed
- 2.The trial court's finding that the sale agreement was null and void is upheld
- 3.The counterclaim stands dismissed on the ground of jurisdiction
- 4.Each party to bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court at Bondo (PMELC)
- Bondo PMELC Case No. E047 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Magistrates' Court in environment and land matters
Relief refused
#Setting aside the judgment and decree in Bondo PMELC E047 of 2021 and awarding the orders prayed for by the Appellants
The court agreed the sale agreement was a nullity, and accepted that the trial court lacked jurisdiction over the adverse possession counterclaim, so the appeal could not be allowed
A pronouncement on whether the Appellants proved the elements of adverse possession
The trial court had no jurisdiction to entertain the adverse possession counterclaim
Costs of the appeal
Each party directed to bear its own costs
Costs
Each party to bear its own costs of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is the finding of this court that the validity of the sale agreement does not afiect a claim of adverse possession.
Once the land was registered the restriction did not bar a claim for adverse possession. Time did not stop running.
it is only the Environment and Land Court which has jurisdiction to hear and determine claims for adverse possession.
The upshot of the foregoing is that the prayers in the appeal cannot be granted and it is hereby dismissed for the foregoing reasons. Let each party bear its own costs of this appeal.
Issues in the judgment
#Date of the sale agreement appears inconsistently as 16/6/1997 in the memorandum of appeal and 16/6/1977 in the respondents' submissions
Apparent typographical error stating occupation for '2024 years' instead of 24 years
The appellants are described as 'plaintiffs' in one passage though they were defendants below
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Opany & another v Okech (Suing as Legal Representative of the Estate of the Late Martin Okech Oyange) & another (Environment and Land Appeal E016 of 2024) [2025] KEELC 6857 (KLR)", Case Analysis (2025). Environment and Land Appeal (Bondo ELC Appeal from PMELC E047 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6857/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.