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ELCPartially AllowedELC Case No. 257 of 2016· [2017] KEELC 872 (KLR)

Bernhard Rau v Samuel Kazungu Mramba & another [2017] KEELC 872 (KLR)

Environment and Land Court
30 November 2017
AOA. Omollo
906 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's highest courts protect foreigners' leasehold property rights — a German investor regained full control of his Mtwapa apartments and years of collected rent.

What this practically means

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Executive summary

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The plaintiff, a German citizen, sued two siblings for declaring him the lawful owner of apartments erected on a 50 feet x 80 feet plot in Mtwapa bought from Daniel Mbogho Kalume, and for orders relating to rent collection, access, eviction and damages. The defendants were served but did not enter appearance, and interlocutory judgment was entered on 6th March 2017. The matter proceeded to formal proof on 9th October 2017, with the plaintiff testifying as PW1 and calling a corroborating witness as PW2. The plaintiff produced a 1998 tenancy agreement permitting him to develop the land upon payment of ground rent, and a sale agreement dated 28th February 2013 for the purchase of the portion comprised in title No. MN/III/3839/8. He also produced correspondence, including a demand letter of 4th February 2015 from his advocates terminating the defendants as rent-collecting agents, which went unheeded. The court held that Article 40(1) of the Constitution guarantees the right to own property, Article 65 permits non-citizens to own property on leasehold terms, and section 25(1) of the Land Registration Act confers indefeasible rights on a registered proprietor. Finding the plaintiff's unchallenged evidence sufficient, the court entered judgment in his favour in terms of prayers (a) to (f) of the plaint, declined to award damages under prayer (g) since compliance with the accounts order would suffice, and awarded the plaintiff the costs of the suit.

Key legal issues

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01

Entitlement of a non-citizen plaintiff to ownership and possession of the suit apartments

Holding

The plaintiff, a German citizen, is entitled to own the property on leasehold terms and enjoy the rights of a registered proprietor free from other interests and claims; judgment entered for him on the ownership, possession, rent-account and eviction claims.

Reasoning

The plaintiff proved his title through a 1998 tenancy agreement permitting development on payment of ground rent and a 2013 sale agreement with the registered owner, Daniel Mbogho Kalume, for the plot on title MN/III/3839/8. His evidence was unchallenged as the defendants never entered appearance. The court found no evidence why the plaintiff should not enjoy the rights the Constitution and the Land Registration Act confer on him as proprietor.

p. 2

Legal principles established

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  • Non-citizens may own property in Kenya on leasehold tenure terms under Article 65 of the Constitution
  • A registered proprietor's rights under the Land Registration Act are indefeasible except as provided in the Act

Court orders

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  1. 1.Judgment entered for the plaintiff in terms of prayers (a), (b), (c), (d), (e) and (f) of the plaint
  2. 2.Declaration that the plaintiff is the lawful owner entitled to immediate possession of the apartments
  3. 3.Declaration that any purported collection of rent by the defendants is null and void
  4. 4.Permanent injunction restraining the defendants from entering, occupying or dealing with the suit apartments
  5. 5.Mandatory order allowing the plaintiff unlimited access to the apartments
  6. 6.Mandatory order compelling the defendants to produce financial statements and accounts of rent collected from January 2015
  7. 7.Mandatory eviction order against the 1st defendant from the suit apartments
  8. 8.Costs of the suit awarded to the plaintiff

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(1)
  • Constitution of Kenya, 2010Article 65
  • Land Registration ActSection 25(1)
Jurisdiction invoked
Article 40(1) and Article 65 of the Constitution; section 25(1) of the Land Registration Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bernhard Rau v Samuel Kazungu Mramba & another [2017] KEELC 872 (KLR)", Case Analysis (2017). ELC Case No. 257 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/872/eng@2017-11-30

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