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Court of AppealDismissedCivil Appeal No. 18 of 2017· [2018] KECA 151 (KLR)

Abdukrazak Khalifa Salimu v Harun Rashid Khator & 2 others [2018] KECA 151 (KLR)

Court of Appeal of Kenya
8 November 2018
WKW. KaranjaMartha Karambu KoomeM. K. KoomeJOJ. Otieno-Odek
5,375 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a 'house without land' owner only occupies at the landowner's pleasure, and must raise limitation defences in pleadings.

What this practically means

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Executive summary

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This first appeal from the High Court at Mombasa (Muriithi, J.) concerned the coastal land tenure known as 'house without land', under which a person owns a house on land belonging to another. The appellant owned such a house on Plot No. 3891 (Original 284/197) Sec. III MN and sued to restrain the respondents, the registered owners, from developments that he said blocked access, light and ventilation and infringed an easement. The trial court dismissed his suit, allowed the respondents' counterclaim, ordered his eviction with three months to vacate, and alternatively offered negotiated tenancy or compensation. The Court of Appeal, in a single judgment of the court, dismissed the appeal. It held that a trial court cannot raise and determine limitation issues sua sponte, since limitation must be pleaded and proved by the party relying on it, guided by Galaxy Paints v Falcon Guards. It accepted that a house-without-land arrangement is in substance a lease under Section 105 of the Transfer of Property Act, so the owner is entitled to notice under Section 106, and found that no formal statutory notice was issued. However, lack of notice could not defeat the counterclaim for ejectment; the appellant was entitled only to reasonable time to vacate. Because the house had been erected with the consent of the registered proprietor, withdrawal of that consent - intimated by telling the mosque to stop collecting rent - made the appellant a trespasser, and as a tenant he was estopped from challenging the respondents' title under Section 121 of the Evidence Act. No easement, public right, or right to unobstructed light, air or view was proved. The court upheld the trial judgment, set aside the alternative negotiated-settlement orders under Section 108(h) TPA, allowed the appellant three months from the date of judgment to vacate and remove his house, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the trial court erred in not raising the limitation defence sua sponte

Holding

The trial judge did not err; limitation issues must be pleaded and proved by the party relying on them and cannot be raised and determined sua sponte without inviting submissions.

Reasoning

Relying on Galaxy Paints Co. Ltd v Falcon Guards Ltd, the court held that issues flow from the pleadings and that a court acting sua sponte without inviting submissions violates natural justice. Whether a limitation period has lapsed is a question of fact that must be specifically pleaded and proved; the appellant failed to plead or lead evidence on expiry of the period. Section 7 of the Limitation of Actions Act (twelve years for recovery of land), not Section 4(2), was the relevant provision.

p. 3
02

Whether an owner of a house without land is entitled to notice of termination

Holding

Yes. The concept of house without land is in substance a lease within Section 105 of the Transfer of Property Act, and the owner is entitled to notice under Section 106 TPA.

Reasoning

The court adopted the dictum in Famau Mwenye v Mariam Binti Said likening the house-without-land arrangement to a lease under Section 105 TPA. A lease may be determined by notice in accordance with the lease agreement or as stipulated by law. However, lack of formal statutory notice does not defeat a counterclaim for ejectment; the occupier is entitled only to reasonable time to vacate, which the court fixed at three months.

p. 5
03

Whether the appellant became a trespasser and could challenge the respondents' title

Holding

The appellant's continued occupation depended on the registered proprietor's consent; its withdrawal made him a trespasser, and as tenant he was estopped from challenging the respondents' title.

Reasoning

The house without land was erected with the consent of the registered proprietor, so its continued presence could only be with that consent. Informing the mosque not to accept rent amounted to implied cancellation of permission. The court applied the maxim that a tenant cannot question the landlord's title, reinforced by Create Invest Develop Pty Ltd v Cooma Clothing Pty Ltd and Section 121 of the Evidence Act, Cap 80.

p. 5
04

Whether the appellant enjoyed an equity of expectation, easement, or rights to light, air and view

Holding

No. The only expectation was occupation subject to continued consent, and no easement was proved; there is no right to an unobstructed view, light or air absent an express easement or restrictive covenant.

Reasoning

The court found no evidence of the nature, category or extent of any easement, nor of any public right over the property, and declined to found liability on speculation about respiratory disease. It stated the general common law position that a landowner has only a natural right to air and light and no property in them, citing academic and foreign authority on the absence of a right to a view, subject to the exception of malicious obstruction by a structure with no reasonable use.

p. 4

Legal principles established

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  • An owner of a 'house without land' is entitled to notice of termination of the tenancy under Section 106 of the Transfer of Property Act, but the counterclaim for ejectment cannot be defeated on account of lack of notice; the occupier is entitled only to reasonable time to vacate.
  • A trial court should not, on its own motion, raise and determine limitation issues without pleading by the party relying on limitation and without inviting submissions; doing so unilaterally violates the right to be heard.
  • A house without land erected with the consent of the registered proprietor may remain only with that consent; withdrawal of consent makes the occupier a trespasser, and such occupier is estopped from challenging the landlord's title under Section 121 of the Evidence Act.
  • There is no legal right to an unobstructed view, light or air from adjoining land absent an express easement or restrictive covenant.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The judgment of the trial court dated 6th February 2015 is upheld and varied to the extent that the alternative orders (negotiated House without Land agreement or compensation for the value of the house) are set aside
  3. 3.The appellant is given three (3) months' notice from the date of the judgment to vacate the suit property and remove his house without land
  4. 4.Upon expiry of the three months, the respondents are at liberty to evict the appellant from the suit property
  5. 5.Each party is to bear its own costs in this appeal

Authorities

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Legislation

  • Limitation of Actions ActSection 4(2)
  • Limitation of Actions ActSection 7
  • India Transfer of Property Act 1882 (as applied and amended in Kenya)Section 3
  • India Transfer of Property Act 1882 (as applied and amended in Kenya)Section 8
  • India Transfer of Property Act 1882 (as applied and amended in Kenya)Section 51
  • India Transfer of Property Act 1882 (as applied and amended in Kenya)Section 105
  • India Transfer of Property Act 1882 (as applied and amended in Kenya)Section 106 (including subsections (1)-(4))
  • India Transfer of Property Act 1882 (as applied and amended in Kenya)Section 108(h)
  • Kenya Evidence Act, Cap 80Section 121

Cases cited (9)

  • Famau Mwenye & 19 others vs. Mariam Binti Said
    Malindi H.C.C.C. No. 34 of 2005
  • Inwards & Others vs. Baker
    (1965) QB 29
  • Selle vs. Associated Motor Boat Co.
    [1968] EA 123
  • Abdul Hameed Saif vs. Ali Mohamed Sholan
    (1955), 22 E. A. C. A. 270
  • Christopher Baya and 2 Ors. vs. Philip Kiluko and Another
    Mombasa HC Civil Appeal No. 64 of 2004
  • Galaxy Paints Co. Ltd. vs. Falcon Guards Ltd.
    EALR (2000)2 EA 385
  • Subhash Chander vs. Fathay Singh
    RSA No. 290 of 2015
  • Create Invest Develop Pty Ltd vs. Cooma Clothing Pty Ltd
    [2012] VCAT 1907
  • Pacifica Homeowners’ Ass’n vs. Wesley Palms Ret. Cmty.
    178 Cal. App. 3d 1147 (Cal. App. 4th Dist. 1986)
On appeal from
High Court of Kenya at Mombasa
Mombasa H.C.C. C. No. 188 of 2006
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate jurisdiction of the Court (no specific constitutional/statutory provision cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Abdukrazak Khalifa Salimu v Harun Rashid Khator & 2 others [2018] KECA 151 (KLR)", Case Analysis (2018). Civil Appeal No. 18 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/151/eng@2018-11-08

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