Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedSecond appeal from ELCA No. 7 of 2019· [2025] KECA 929 (KLR)

Nyumu v Said & another (Civil Appeal E007 of 2022) [2025] KECA 929 (KLR)

Court of Appeal
21 March 2025
KLK. I. LaibutaLAL. AchodeGNG. W. Ngenye-Macharia
4,800 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that a power of attorney limited to collecting rent cannot be used to sell a coastal 'house without land' — the buyer lost everything.

What this practically means

#

Executive summary

#
This was a second appeal, limited by section 72(1) of the Civil Procedure Act to matters of law, from the Environment and Land Court at Mombasa (Munyao Sila, J.), which had itself dismissed the appellant's first appeal from the trial court's dismissal of his suit. The appellant claimed to have purchased a house without land on Plot No. 426/1/MN for Kshs 750,000 through the respondents' attorney under a Power of Attorney, and sought a permanent injunction or, alternatively, a refund plus loss of income. Both courts below held that the Power of Attorney, though prepared on a 'General Power of Attorney' form, was limited by its recitals to collecting rents and suing on the donors' behalf, and could not be used to sell the house; and that, since the land was registered in undivided shares of three proprietors with no evidence of any sharing of developments on the ground, any sale required the consent of all three. The Court of Appeal, applying the strict construction of powers of attorney (recitals controlling general words in the operative part) and the coastal-Kenyan 'house without land' doctrine (a customary licence not assignable without the landowner's consent), dismissed the appeal, upheld the ELC judgment, and awarded costs of the appeal to the respondents. The appellant obtained none of the reliefs sought in his amended plaint.

Key legal issues

#
01

Validity and scope of the Power of Attorney for the sale of a house without land

Holding

The donee had power only to collect rents and sue for their recovery; he had no power to sell the house without land, and the general power to buy and sell movable or immovable property was limited by the recitals to the rent-collection purpose

Reasoning

The Power of Attorney was prepared from a standard form titled 'General Power of Attorney' containing many pre-listed powers, but the recitals typed into the deed specifically limited the object to collecting rents and suing on the donors' behalf. Applying the strict construction rule from Halsbury's and Spina v Permanent Custodians, the general words in the operative part are controlled by the recitals. The general power to buy and sell movable or immovable property could not be conflated with authority to transfer a licence to construct a house without land.

p. 6
02

Whether the sale was a nullity for lack of consent of all registered proprietors

Holding

The sale was a nullity because there was no authority to sell from two of the three registered proprietors and no evidence that the house sold was the actual share on the ground of the specified seller

Reasoning

The Certificate of Postal Search showed the suit property registered in undivided shares of Awadh Bin Saleh (5/9), Omar Bin Funzi (2/9) and Charity Cherotich Tylor (2/9). No evidence showed the proprietors had shared the developments on the ground or specified who owned what. Any dealings in the land or developments thereon required the joint consent of all three proprietors. The Power of Attorney was donated by only two persons and did not involve the other two registered proprietors.

p. 8
03

The nature of the 'house without land' tenure in coastal Kenya

Holding

A house without land is a customary licence, the owner of the house being different from the owner of the land on which it stands, and it is not assignable without express consent of the land proprietor(s)

Reasoning

The Court adopted its earlier exposition in Abdukrazak Khalifa Salimu v Harun Rashid Khator and the observations of Angote, J. in Murtahar Ahmed Dahman, noting that under Mohammedan Law and the Land Titles Act a building erected on the land of another does not become attached to the land. Such a licensee's right is a customary licence that cannot be assigned to a third party without express consent of the proprietor or proprietors of the immovable property.

p. 7

Legal principles established

#
  • On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with findings of fact of the lower courts
  • A power of attorney is construed strictly; recitals showing its general object control the general terms in the operative part of the deed
  • Where land is held by co-proprietors in undivided shares and no sharing of developments on the ground is shown, any sale of the land or anything developed on it requires the consent of all registered proprietors
  • A customary licence to build a house without land is not assignable to a third party without the express consent of the proprietor or proprietors of the immovable property
  • Ownership of land is proved through documentation, not pleadings; a court cannot order specific performance where the title holder is not the one sued even if the defendant admits ownership

Court orders

#
  1. 1.The appeal is dismissed
  2. 2.The Judgment and Decree of the Environment and Land Court at Mombasa (S. Munyao, J.) delivered on 9th November 2021 is upheld
  3. 3.Cost of the appeal to the respondents

Authorities

#

Legislation

  • Civil Procedure ActSection 72(1)
  • Land Titles Actcap 282

Cases cited (11)

  • Kenya Breweries Limited v Godfrey Odoyo
    [2010] eKLR
  • Selle & Others v Associated Motor Boat Company Limited
    [1968] 1 EA 123
  • Jabane v Olenja
    [1986] KLR 661
  • Ephantus Mwangi & Anor v Wambugu
    [1982-88] 1 KAR 278
  • Stanley N. Muriithi & another v Bernard Munene Ithiga
    [2016] eKLR
  • Stephen Muriungi and another vs. Republic
    (1982-88) 1 KAR 360
  • Martin vs Glywed Distributors Ltd (t/a MBS Fastenings)
    1983 ICR 511
  • Angelina Spina v Permanent Custodians Limited
    [2008] NSWSC 561
  • Abdukrazak Khalifa Salimu v Harun Rashid Khator & 2 others
    [2018] KECA 151 (KLR)
  • Famau Mwenye & 19 others vs. Mariam Binti Said
    Malindi H.C.C.C. No. 34 of 2005
  • Murtahar Ahmed Dahman & another v Athuman Sudi
    [2013] KEELC 138 (KLR)
On appeal from
Environment and Land Court at Mombasa
ELCA No. 7 of 2019
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act (second appeal limited to matters of law)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nyumu v Said & another (Civil Appeal E007 of 2022) [2025] KECA 929 (KLR)", Case Analysis (2025). Second appeal from ELCA No. 7 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/929/eng@2025-03-21

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