Aly (As Trustee of the Wakf of Ali Bin Mohamed alias Muses Mohamed & 2 others v Islamic Foundation (Civil Appeal E064 of 2023) [2026] KECA 62 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that waqf property dedicated to a mosque can never be sold, granted, or claimed through long occupation — trustees simply cannot give it away.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether, under the terms of the Waqf Deed, a grant of any part of the Waqf property could be made to any person or institution
- 2.Whether the Mutawalli or trustees acted in accordance with the Waqf and the law, and whether their action to grant the respondent a portion of the Waqf property was enforceable at law in an action against the Waqf
- 3.Whether the doctrine of legitimate expectation applies so as to justify a finding that the respondent had acquired proprietary or beneficial interest in the contested portion of the Waqf property
Key legal issues
#Whether a grant of part of a waqf property dedicated to a mosque could be made under the Waqf Deed
No. The Waqf was a waqf khairi dedicated to the Naima Mosque; the founder's proprietary rights were extinguished and ownership vested in God, so the property could not be transferred by grant, gift or sale. The Waqf Deed permitted only temporary leases of up to three years.
The Court applied section 2 of the Waqf Act, Mulla's Principles of Mahomedan Law and Supreme Court of India authority (Syed Mohd. Salie Labbai; Nawab Zain Yar Jung) to hold that a waqf dedicated to a mosque is absolute, irrevocable and inalienable. The letter of offer purported to transfer ownership of 50 acres, which had already been extinguished. The learned Judge erred in upholding the grant merely because the institution's purpose may have been complementary to the waqf objects.
Whether the trustees/Mutawalli acted lawfully and whether the grant was enforceable against the Waqf
The trustees lacked power and authority to grant 50 acres; the letter of offer also required sanction of the Wakf Commissioners under section 14 of the repealed Wakf Commissioners Act and section 18 of the Waqf Act, which was never obtained; the agreement is void and unenforceable against the Waqf.
Under Islamic law the mutawalli is a mere superintendent or manager with no right in the property and cannot alienate it without express empowerment. Alienation of waqf property for over one year requires written sanction of the Commission, and sale requires ELC orders. No sanction or court orders existed. The disposition offended both the Waqf Deed and statute, rendering the contract void ab initio.
Whether legitimate expectation or proprietary estoppel vested the respondent with proprietary or beneficial interest
No. Legitimate expectation is an administrative law doctrine inapplicable to private contractual arrangements; no expectation can arise from an unlawful representation; and title cannot vest by effluxion of time because adverse possession is statutorily excluded from waqf property.
The Court relied on Wataari v Registered Trustees of Telposta Pension Scheme and Communications Commission of Kenya v Royal Media Services for the principle that legitimate expectation arises only where the representation was competent and lawful. The grant here contravened the Waqf Deed, section 14 of the repealed Act and Islamic law. Further, sections 15 and 19 exclude prescription and adverse possession over waqf property, defeating the Judge's finding of vesting by effluxion of time.
Legal principles established
#- No grant of any part of a waqf property dedicated to a mosque may be lawfully made to any person or institution; proprietary rights are extinguished and vested in God
- A mutawalli has no right in waqf property and cannot, without express empowerment by the waqf deed or court permission, mortgage, sell or exchange waqf property
- Contracts or agreements alienating waqf property for more than one year are valid only with written sanction of the Waqf Commission; a trustee entering into such an agreement contrary to section 18 commits an offence
- No title to waqf property can be acquired by adverse possession or prescription
- The doctrine of legitimate expectation is a public law doctrine and cannot found a claim in a purely private contractual dispute; courts should avoid constitutional issues where alternative non-constitutional bases exist
Court orders
#- 1.The judgment and decree of the ELC (L. L. Naikuni, J.) dated 18th October 2022 in ELC Case No. E219 of 2016 be and is hereby set aside
- 2.The respondent's counterclaim against the Waqf shall stand dismissed
- 3.The appellants be and are hereby allowed to secure possession of the Waqf property, including the disputed 50 acres portion thereof, and administer it in accordance with the terms and conditions therein contained and in compliance with the fundamental principles of Islamic law on religious trusts
- 4.Each party shall bear their own costs of the appeal and of the suit and counterclaim in the trial court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- ELC Case No. 219 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (first appellate re-trial mandate); no specific constitutional provision invoked
Relief refused
#Respondent's counterclaim for declaration of capacity, subdivision and transfer of 50 acres of the Waqf property
The trustees lacked power to make the grant; the agreement was unlawful, void ab initio and unenforceable for want of Wakf Commissioners' sanction and breach of the Waqf Deed and the Waqf Act
Respondent's reliance on legitimate expectation/proprietary estoppel to acquire beneficial interest
The doctrine belongs to public/administrative law and could not arise from an illegal representation that was not competent and lawful for the trustees to make
Respondent's claim of ownership by effluxion of time
Excluded by section 15 of the repealed Wakf Commissioners Act and section 19 of the Waqf Act
Costs
Each party shall bear their own costs of the appeal and of the suit and counterclaim in the trial court, in view of the public nature of the dispute.
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.
Simply put, no grant of any part of the Waqf property could be lawfully made to any person or institution.
Accordingly, the appellants had no power or authority under the Waqf Deed or at law to extend the grant in issue and, consequently, the agreement on which the grant was founded is unenforceable at law as against the Waqf.
As the grant went against the clear provisions of the Waqf and the law; and as it was not competent and lawful for the trustees of the Waqf to make a representation that they could grant 50 acres of the Waqf property to the respondent, a legitimate expectation could not have arisen in the circumstances of this case.
a. the judgment and decree of the ELC (L. L. Naikuni, J.) dated 18th October 2022 in ELC Case No. E219 of 2016 be and is hereby set aside;
b. accordingly, the respondent’s counterclaim against the Waqf shall stand dismissed;
d. in view of the public nature of the dispute leading to the instant appeal, we hereby direct that each party shall bear their own costs of the appeal and of the suit and counterclaim in the trial court.
Issues in the judgment
#The trial court's acronyms differ within the judgment (ELCC No. 219 of 2016, Mombasa ELC Case No. 219 of 2016, ELC Case No. E219 of 2016), creating minor ambiguity in the trial case number
The judgment refers to 'section 38 of the Land Act, 2016' whereas the Land Act cited elsewhere in the judgment is Cap. 280 (2012); the citation as made by counsel is internally inconsistent with the statute referenced by the court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Aly (As Trustee of the Wakf of Ali Bin Mohamed alias Muses Mohamed & 2 others v Islamic Foundation (Civil Appeal E064 of 2023) [2026] KECA 62 (KLR)", Case Analysis (2026). Appeal from Mombasa ELC Case No. 219 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/62/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.