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ELCPartially AllowedPlaint dated 24th February 2012 (filed 27th February 2012), Malindi· [2013] KEELC 138 (KLR)

Murtahar Ahmed Dahman & another v Athuman Sudi [2013] KEELC 138 (KLR)

High Court of Kenya (Environment and Land jurisdiction)
12 July 2013
2,744 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Malindi court ruled that verbal, unregistered land agreements give no protection—an occupier can be evicted after one month's notice and must demolish their own structures.

What this practically means

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Executive summary

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The Plaintiffs, administrators of the estate of the late Mariam Binti Said, registered owner of plot 522 Malindi (approximately 5 acres), sued the Defendant for a declaration that a September 2010 notice terminated his revocable licence to occupy a site on the plot, for mesne profits, and for ejectment. The evidence, uncontroverted after the Defendant failed to enter appearance, established that the deceased had allowed the Defendant in 1991 under a verbal agreement to erect a temporary residential structure in return for monthly ground rent, later Kshs.2,000 per month. Payment stopped in March 1999, and a termination notice dated 25th September 2010 was served on 27th September 2010. The suit proceeded ex parte. The court surveyed the peculiar coastal concept of a 'house without land' under the Land Titles Act, Cap 282 and the lapsed Eviction of Tenants (Control) (Mombasa) Ordinance, Cap 298, and applied Sections 107 and 108 of the Indian Transfer of Property Act, 1882, holding that an unregistered verbal agreement creates no equity capable of protection and may be determined by one month's notice, with the occupier obliged to remove his structure and restore the land. Relying on Arif v Jadunath Majdma and Inverugie Investments v Hackett, the court held the Defendant a trespasser from 1st November 2010, awarded Kshs.310,000 plus mesne profits at Kshs.2,000 per month from March 2012, and ordered ejectment by demolition and restoration at the Defendant's expense, with costs to the Plaintiffs. Compensation for the permanent structure was not entertained as none was claimed and the Plaintiffs did not wish to retain the house.

Key legal issues

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01

Validity of termination of the verbal revocable licence

Holding

The September 2010 notice validly terminated the licence; the Defendant became a wrongful occupier

Reasoning

The Defendant entered under an oral agreement paying monthly ground rent. Since the agreement was not by registered instrument, it could be determined by one month's notice under Sections 107 and 108 of the Indian Transfer of Property Act, 1882. The notice was served on 27th September 2010 and expired on 31st October 2010, whereafter the Defendant was a trespasser.

p. 4
02

Entitlement to mesne profits and arrears of ground rent

Holding

The Plaintiffs proved arrears of Kshs.276,000 to September 2010, mesne profits of Kshs.34,000 to February 2012, and Kshs.2,000 monthly thereafter

Reasoning

The receipt exhibited showed payment at Kshs.2,000 per month up to March 1999. The court held the Plaintiffs proved the arrears and mesne profits, applying the principle that damages are recoverable irrespective of proof of actual letting or use, and ordered continuing mesne profits until vacant possession.

p. 5
03

The 'house without land' concept at the Coast

Holding

A building erected on another's land under the Land Titles Act regime remains the property of the erector, but no equity protects an unregistered verbal agreement

Reasoning

The court traced the peculiar coastal phenomenon of owning houses without land under the Land Titles Act, Cap 282 and the lapsed Eviction of Tenants (Control) (Mombasa) Ordinance, Cap 298, but held that the Defendant's unregistered verbal arrangement gave rise to no equity capable of protection.

p. 3

Legal principles established

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  • An unregistered verbal agreement to enter another's land and erect a house confers no enforceable equity; the landowner may eject after one month's notice and the occupier must remove the structure and restore the land
  • Under the Mohammedan Law and the Land Titles Act, Cap 282 applicable at the Coast, a building erected by one person on another's land remains the property of the person who erected it
  • A landowner is entitled to mesne profits from a wrongful occupier irrespective of proof of actual loss

Court orders

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  1. 1.A declaration that the termination notice issued and served upon the Defendant in September 2010 terminated the Defendant's revocable licence and the Plaintiffs are entitled to immediate possession in vacant possession
  2. 2.Declaration that the Defendant's continued possession and occupation is wrongful and illegal and he is liable to pay the Plaintiffs Kshs.310,000/- plus mesne profit at Kshs.2,000 per month from March 2012 until he vacates the site
  3. 3.An order of ejectment of the Defendant from portion 522 Malindi by demolition of the structures and restoration of the site to its original state at the Defendant's expense
  4. 4.The Defendant to pay the costs of the suit

Authorities

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Legislation

  • Transfer of Property Act, 1882 of IndiaSections 107 and 108
  • Registration of Titles ActCap 281 (definition of land)
  • Land Titles ActCap 282
  • Land Title Ordinance1908
  • Eviction of Tenants (Control) (Mombasa) OrdinanceCap 298, Section 2

Cases cited (3)

  • Arif Vs Jadunath Majdma
    (1930) Vol VIII Indian Appeals, 91
  • Said Bin Seif vs Shariff Mohamed Sharty
    (1940-1) Part II, Vol XIX, KLR 9
  • Inverugie Investment Ltd vs Hackett
    (1995) 3 All ER 841
Jurisdiction invoked
Original civil suit on plaint (contract/licence and ejectment claim under the Transfer of Property Act, 1882 of India and Land Titles Act, Cap 282)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Murtahar Ahmed Dahman & another v Athuman Sudi [2013] KEELC 138 (KLR)", Case Analysis (2013). Plaint dated 24th February 2012 (filed 27th February 2012), Malindi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/138/eng@2013-07-12

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