Japheth v Wakf Commissioners of Kenya & 2 others (Civil Appeal 71 of 2020) [2023] KECA 1512 (KLR)
The bottom line
#Kenya's Court of Appeal restored a Kshs 60 million Mombasa lease purchase, ruling the Wakf Commissioners' own letter validly granted transfer consent.
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 learned Judge erred in concluding that the consent of the Wakf Commissioners in respect of the transfer of the lease was not obtained
- 2.Whether the Judge erred in concluding that the appellant breached the terms of the lease by selling alcohol on the property
- 3.(Cross-appeal) Whether the Judge erred in failing to terminate the lease between the Wakf Commissioners and the Vendors despite finding breach of the lease
Key legal issues
#Whether written consent of the Wakf Commissioners to the transfer of the lease was obtained
Consent was in fact granted; the letter of 17th August 2015 signed by the Secretary and the receipt for the consent fee evidenced consent, and the Judge erred in requiring the Chairman's signature and in misconstruing the letter.
Clause (h) of the Lease required the lessor's written consent, not unreasonably withheld. The Secretary signed the 17th August 2015 letter in his official capacity, headed 'consent-Transfer of Lease', acknowledging receipt of Kshs.450,000 consent fee. The Judge had earlier accepted in the same judgment that a Secretary ordinarily has authority to sign documents for the Commissioners under Section 7(4) of the Wakf Commissioners Act, making his contrary finding internally inconsistent. The letter's reference to the Chairman concerned execution of the Transfer Document, not the consent itself.
Whether the sale of alcohol on the property breached clause (e) of the Lease
The breach was not proved; the burden lay on the Wakf Commissioners to prove on a balance of probabilities that selling alcohol was 'illegal use' offending the beliefs of Muslims, and judicial notice of a religious belief could not be taken without proof of its notoriety.
Under sections 107-109 of the Evidence Act, whoever asserts facts must prove them. Section 60 permits judicial notice of matters of common notoriety, but Gupta v Continental Builders places the burden of convincing the judge of that notoriety on the party invoking it. No verse of the Holy Koran was cited and no evidence established that selling alcohol offends the beliefs of Muslims. Indeed the Vendors' Muslim father had run a bar selling alcohol on the premises for years, undermining the claim of notoriety.
Legal principles established
#- A letter from the Secretary of a body, signed in that official capacity and acknowledging receipt of a consent fee in respect of a transfer, can constitute the consent of the body; a trial judge cannot demand the chairman's personal signature absent evidence that the officer lacked authority.
- Where judicial notice of a religious belief or practice is sought to be taken to the disadvantage of a party who does not profess that faith, it is not sufficient to call evidence from those professing the faith; the proponent must prove the belief or practice is notorious among non-adherents too.
Court orders
#- 1.Appeal allowed
- 2.Judgment of the Environment and Land Court set aside in its entirety
- 3.Cross-appeal dismissed
- 4.Appellant to have the costs of the appeal
- 5.No orders as to the costs of the cross appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- not stated (suit filed 28th November 2018)
- Jurisdiction invoked
- First appeal to the Court of Appeal against a judgment of the Environment and Land Court (statutory first appeal; specific provision not cited in the judgment)
Relief refused
#Cross-appeal seeking termination of the lease between the Wakf Commissioners and the Vendors
The Court held that the Wakf Commissioners granted consent to transfer and that the Vendors did not breach the lease
Costs
The appellant will have the costs of the appeal; as the 2nd and 3rd respondents did not participate in the appeal or cross appeal, no orders as to the costs of the cross appeal. (At trial, the Judge ordered each party to bear its own costs, holding the Wakf Commissioners had 'received money for the issuance of the consent but slept on the same without dealing with the application for consent to transfer.')
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.
We are therefore persuaded, and we hold, that the learned Judge erred in concluding that consent to transfer was not granted. We find that consent to transfer was in fact granted.
The positions taken by the learned Judge are in our view irreconcilable and to that extent the judgment is internally inconsistent.
In the result, we allow the appeal and set aside the judgment of the ELC in its entirety. The appellant will have the costs of the appeal.
Issues in the judgment
#The judgment itself records inconsistent dates for the Lease, noting the plaint referred to a Lease dated 16th April 2013 which 'should be Lease dated 15th April 2013'
The judgment records inconsistent figures for the consent fee paid, 'sometimes the amount mentioned is Kshs. 480,000.00' against the receipted Kshs.450,000.00
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Japheth v Wakf Commissioners of Kenya & 2 others (Civil Appeal 71 of 2020) [2023] KECA 1512 (KLR)", Case Analysis (2023). Court of Appeal Appeal (Mombasa) – arising from ELC suit by Wakf Commissioners against the Vendors and the appellant (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1512/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.