Laurenco K. Karisa & 3 others (Suing on their own behalf and on behalf of Forty Six (46) others, as individuals and members of Ushindi Self Help Group) v Salim Ali Jemadar as Administrator of Jemadar Amin & 6 others [2017] KEELC 631 (KLR)
The bottom line
#The Mombasa Environment and Land Court ruled that long-term occupants cannot use constitutional housing rights to defeat a registered landowner's title issued before the 2010 Constitution.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioners' constitutional rights can be enforced against the registered owner
No - the Petitioners entered with the 1st Respondent's consent, the title was first in time, and the claimed rights cannot apply retrospectively
The Petitioners admitted entering the land with the consent of the 1st Respondent's family under a consensual arrangement to pay ground rent and stand premium. Registration of the 1st Respondent's predecessor preceded their occupation. Since the title predates the 2010 Constitution, the rights claimed cannot apply retrospectively. The Petitioners also failed to prove particulars of illegality in the issuance of the title, and the auctioneer's notice was for ground rent, not eviction.
Whether tenancy at will is unconstitutional
No - the Constitution does not recognise the concept, and the relationship is a consensual landlord/tenant contract enforceable by either party
The 2010 Constitution specifies classifications of land holding but makes no reference to tenancy at will; the court cannot declare unconstitutional what the Constitution does not recognise. The parties' relationship is contractual landlord/tenant, terminable on notice, entered consensually without coercion or duress. Section 121 of the Evidence Act bars tenants from denying the landlord's title, defeating the Petitioners' challenge to the title issued.
Whether the National Land Commission could investigate the allocation
No - the Suit Property is private land, which is outside the NLC's mandate under Article 62
Article 62 vests administration of public land in the NLC, but this Petition concerns private land. The NLC could investigate only if the land was public land illegally acquired or irregularly allocated, and no evidence showed it was ever public land. The burden of proving that allegation lay on the Petitioners under sections 107 and 109 of the Evidence Act.
Legal principles established
#- Rights claimed under the Constitution 2010 cannot be applied retrospectively to conduct predating it
- A tenant or licensee cannot deny the landlord's title at the commencement of the tenancy or licence
- The burden of proof lies on the person alleging illegality
- The Constitution does not recognise the concept of tenancy at will, hence it cannot be declared unconstitutional
Court orders
#- 1.The Petition is dismissed with costs to the 1st Respondent
- 2.No costs are awarded to the 2nd to 7th Respondents who did not participate in the hearing
- Jurisdiction invoked
- Article 22 of the Constitution of Kenya (2010)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Laurenco K. Karisa & 3 others (Suing on their own behalf and on behalf of Forty Six (46) others, as individuals and members of Ushindi Self Help Group) v Salim Ali Jemadar as Administrator of Jemadar Amin & 6 others [2017] KEELC 631 (KLR)", Case Analysis (2017). Constitutional Petition No 58 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/631/eng@2017-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.