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ELCPartially AllowedBusia ELC Case No. E015 of 2021 (O.S)

Opama v Murunga & 2 others (Enviromental and Land Originating Summons E015 of 2021) [2026] KEELC 4510 (KLR)

Environment and Land Court
16 July 2026
5,646 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Busia court awarded a buyer two land parcels by adverse possession after 15 years of open occupation, but refused the extra acre occupied without a proven sale.

What this practically means

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Executive summary

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The Plaintiff moved the Environment and Land Court at Busia by Originating Summons dated 14th October 2021 seeking a declaration that he had acquired five acres comprised in land parcels NO SOUTH TESO/OSURETTE/4118, 4119 and 4120 by adverse possession, on the basis of three purchase transactions with the 1st Defendant between 2001 and 2007. The 1st Defendant denied the third agreement and maintained only four acres were sold, to be shared between the Plaintiff and his brother DW2, the latter having sold his share to the 2nd Defendant. The 3rd Defendant, a purchaser from the 1st Defendant in April 2021 of parcel 4120, opposed the claim as an invasion of his land. The 2nd Defendant filed no response and did not testify. The court found, on the evidence and given the disowned third sale agreement, that the Plaintiff purchased only four acres. It held that he had been in open, exclusive and uninterrupted occupation of parcels 4118 and 4119 since 2006, well beyond twelve years, without the registered proprietors asserting their rights, and declared that he had acquired those parcels by adverse possession with the Defendants' rights extinguished. The claim against the 3rd Defendant was dismissed because any occupation of parcel 4120 was by stealth. The court ordered surrender and cancellation of the titles to 4118 and 4119, registration in the Plaintiff's name in default, the 1st and 2nd Defendants to pay the Plaintiff's costs, and dismissed the suit against the 3rd Defendant with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Defendants are the proprietors of the parcels NO SOUTH TESO/OSURETTE/4118, 4119 and 4120 measuring 5 acres
  2. 2.Whether the Plaintiff has been in occupation and use of the aforesaid parcels of land for a period exceeding 12 years
  3. 3.Whether the occupation and use has been open, notorious and un-interrupted
  4. 4.Whether the Plaintiff has acquired ownership through adverse possession
  5. 5.Whether the Defendants should pay costs of the suit

Key legal issues

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01

Extent of the land purchased by the Plaintiff from the 1st Defendant

Holding

The Plaintiff purchased 4 acres, not the 5 acres claimed; the disputed agreement for the additional 1 acre was disowned by the 1st Defendant

Reasoning

The court examined the three sale agreements, noting that the agreement dated 01/15/07 for one acre was disputed by the 1st Defendant who denied her signature. Weighing this against the consistent testimony of the 1st Defendant and DW2 that only 4 acres were sold to be shared between the Plaintiff and his brother, the court found the purchase was of 4 acres only.

p. 20
02

Whether the Plaintiff acquired land parcel NO SOUTH TESO/OSURETTE/4119 by adverse possession from the 2nd Defendant

Holding

Yes - the claim was unopposed and the Plaintiff had been in occupation for some 15 years by the time the 2nd Defendant obtained title

Reasoning

The 2nd Defendant filed no pleading and did not testify, so the claim against him was uncontroverted. The Plaintiff had occupied since 2006. The boundary dispute was between the Plaintiff and the 1st Defendant, not the 2nd. Even if the 2nd Defendant had asserted his rights upon registration in 2021, the 12-year period had already run and the title was extinguished.

p. 26
03

Whether the Plaintiff acquired land parcel NO SOUTH TESO/OSURETTE/4118 by adverse possession from the 1st Defendant

Holding

Yes - the 1st Defendant admitted the Plaintiff bought 2 acres in 2001 and 2 acres in 2006 and had been using 4 acres since purchase

Reasoning

In cross-examination the 1st Defendant conceded both the 2001 and 2006 agreements and that the Plaintiff had been using the 4 acres from the time of purchase. This was a clear admission entitling the Plaintiff to the orders sought against her in respect of parcel 4118, and she had relinquished her interest in it.

04

Whether the Plaintiff acquired land parcel NO SOUTH TESO/OSURETTE/4120 by adverse possession from the 3rd Defendant

Holding

No - the claim against the 3rd Defendant was dismissed as the occupation was through stealth

Reasoning

Since the court found only 4 acres were purchased, any occupation of the 1 acre later sold and transferred to the 3rd Defendant was without the knowledge or consent of the 1st Defendant and thus by stealth. Adverse possession must not be by force, secrecy or evasion, so the claim failed.

p. 30
05

Whether a surveyor's evidence was necessary to establish the size of land occupied

Holding

No - the claim was for the whole of a parcel whose registered acreage was not in dispute

Reasoning

The Plaintiff claimed the whole of parcel 4119, whose title deed confirmed it measures 2.076 acres (0.8 Ha). Surveyor evidence would only have been necessary had the Plaintiff claimed a portion of the parcel or had the acreage itself been disputed, which was not the case.

p. 27

Legal principles established

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  • To be entitled to land by adverse possession the claimant must prove exclusive, open and uninterrupted possession as of right for 12 years
  • Interruption of adverse possession occurs only when the registered proprietor takes legal proceedings or makes an effective entry into the land
  • A purchaser who has paid the full purchase price is a party in whose favour time for adverse possession can run
  • Possession by force, secrecy or stealth cannot found a claim in adverse possession

Court orders

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  1. 1.The Plaintiff has acquired the land parcels NO SOUTH TESO/OSURETTE/4118 and 4119 by way of adverse possession
  2. 2.The rights of the 1st Defendant and 2nd Defendant in the said parcels of land have been extinguished
  3. 3.The 1st and 2nd Defendants shall within 30 days of delivery of this judgment surrender to the Land Registrar Busia the original title deeds for the land parcels NO SOUTH TESO/OSURETTE/4118 and 4119 for cancellation
  4. 4.In default of surrender, the Land Registrar Busia shall cancel the register of the land parcels NO SOUTH TESO/OSURETTE/4118 and 4119 in the names of the 1st and 2nd Defendants and register the same in the name of the Plaintiff
  5. 5.The 1st and 2nd Defendants shall meet the Plaintiff's costs of this suit
  6. 6.The Plaintiff's suit against the 3rd Defendant is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction under Section 38(1) of the Limitation of Actions Act (claim for registration as proprietor by adverse possession)

Relief refused

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Declaration of adverse possession over land parcel NO SOUTH TESO/OSURETTE/4120

The court found the Plaintiff only purchased 4 acres and not the 5 acres claimed; any occupation of the 1 acre registered to the 3rd Defendant was through stealth, which cannot sustain adverse possession

p. 30

Costs

The 1st and 2nd Defendants shall meet the Plaintiff's costs of this suit; the Plaintiff's suit against the 3rd Defendant is dismissed with costs (i.e. Plaintiff to pay the 3rd Defendant's costs)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Plaintiff has acquired the land parcels NO SOUTH TESO/OSURETTE/4118 and 4119 by way of adverse possession
p. 30Final orders - declaration of adverse possession
The 1st and 2nd Defendants shall within 30 days of delivery of this judgment surrender to the Land Registrar Busia the original title deeds for the land parcels NO SOUTH TESO/OSURETTE/4118 and 4119 for cancellation
p. 30Final orders - surrender of title deeds for cancellation
The 1st and 2nd Defendants shall meet the Plaintiff's costs of this suit
p. 31Final orders - costs
The Plaintiff's suit against the 3rd Defendant is dismissed with costs
p. 31Final orders - dismissal against 3rd Defendant
I am persuaded that the Plaintiff only purchased 4 acres of land from the 1st Defendant and not 5 acres as he claims
p. 20Findings on extent of purchase
Time ceases to run under the Limitation of Actions Act either when the owner asserts his right or when his right is admitted by the adverse possessor
p. 26Interruption of adverse possession

Issues in the judgment

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material

Internal contradiction on registration of the original parcel: paragraph 31 states the original land parcel NO SOUTH TESO/OSURETTE/3816 was registered in the Plaintiff's name, whereas the rest of the judgment records that the 1st Defendant was the vendor and the suit parcels derive from her

minor

Inconsistent description of ownership of parcel NO SOUTH TESO/OSURETTE/4120: it is described as registered in the names of both the 1st and 3rd Defendants, yet elsewhere only in the 3rd Defendant's name

minor

The register for parcel NO SOUTH TESO/OSURETTE/4119 is said to show registration in the name of the 1st Defendant, though the parcel was created as one of the three in the names of the 1st, 2nd and 3rd Defendants respectively

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Opama v Murunga & 2 others (Enviromental and Land Originating Summons E015 of 2021) [2026] KEELC 4510 (KLR)", Case Analysis (2026). Busia ELC Case No. E015 of 2021 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4510/eng@2026-07-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.