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ELCDismissedEnvironment and Land Appeal (Bondo ELC Appeal from PMELC E047 of 2021)· [2025] KEELC 6857 (KLR)

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)

Environment and Land Court
9 October 2025
ADA.E. Dena
3,437 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The appellants appealed against the judgment of Hon. J.P. Nandi in Bondo PMELC E047 of 2021, in which the trial magistrate found them to be trespassers, held the 1997 sale agreement under which their father purchased the suit land invalid for want of compliance with section 3(3) of the Law of Contract Act, and dismissed their adverse possession counterclaim on the basis that a Chief Land Registrar's restriction meant their occupation was not adverse. On appeal, the court agreed with the trial court that the sale agreement was null and void, but held that its invalidity does not defeat a claim of adverse possession, following Onzere v Nanyama. The court further held that adverse possession runs with the land and not the register; the restriction registered in 1983 pending land adjudication appeals barred only dealings prior to registration and did not stop time running. However, upholding the Court of Appeal decision in Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti, the court accepted the respondents' objection that the Magistrates' Court lacked jurisdiction over adverse possession claims, which under section 9(a) of the Magistrates' Court Act are reserved for the Environment and Land Court. The counterclaim therefore stood dismissed for want of jurisdiction, and the court declined to pronounce on whether the elements of adverse possession were proved. The appeal was dismissed with each party bearing its own costs, while the trial court's finding on the nullity of the sale agreement was upheld.

Key legal issues

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01

Whether invalidity of the sale agreement defeats adverse possession

Holding

It does not; adverse possession does not depend on the validity of the transaction under which entry occurred

Reasoning

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.

p. 5
02

Whether the Chief Land Registrar's restriction stopped time running

Holding

It did not; the restriction only barred dealings before registration and could not bar a post-registration adverse possession claim

Reasoning

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).

p. 6
03

Jurisdiction of the Magistrates' Court over adverse possession counterclaims

Holding

The trial court lacked jurisdiction; the counterclaim was not properly before it and stands dismissed on that ground

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 2.The trial court's finding that the sale agreement was null and void is upheld
  3. 3.The counterclaim stands dismissed on the ground of jurisdiction
  4. 4.Each party to bear its own costs of the appeal
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

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, "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.