Juma Mzee Ali & 43 others v Al Mohamed Hatimy & another [2018] KEELC 3849 (KLR)
The bottom line
#A Kenyan High Court confirmed that 'house without land' owners in Mombasa cannot have their homes auctioned for ground rent without notice and a court order.
What this practically means
#Executive summary
#Key legal issues
#Distress/attachment of 'house without land' structures to recover ground rent
The Plaintiffs' Swahili houses could not be proclaimed, attached and auctioned without notice and without proper court proceedings; the proclamation was unlawful.
The court took judicial notice that the repealed Land Titles Act recognized houses erected on another's land as the property of the person who erected them. Such houses are not the landowner's chattels and could not be sold to recover ground rent without notice to the Plaintiffs. The Defendants filed no defence and led no evidence, so the Plaintiffs' testimony went uncontroverted.
Ownership of the houses and the coastal 'house without land' concept
The Plaintiffs proved on a balance of probabilities that they own the houses constructed on the plot and have been paying monthly ground rent to persons other than the 1st Defendant.
PW1 testified that the Plaintiffs built the Swahili houses and have occupied them since 1952 as their homes and source of livelihood. The court applied the doctrine from Murtahar Ahamed Dahman explaining that under the Land Titles Act and Mohammedan law a building erected on another's land remains the property of the builder. The Defendants did not dispute these averments.
Self-help eviction/attachment versus recourse to a court of law
Even where rent arrears exist, a landlord must go to court to obtain orders before re-entry, eviction or sale of structures; self-help is unlawful.
The court adopted the reasoning in Harveys Bar & Restaurant Ltd v Fernando Visch that a landlord with lease advantages must still obtain court or tribunal orders for eviction and execute them rather than 'marching into the premises'. Applied here, the 2nd Defendant's proclamation of attachment without any prior notice, without a court order, and without proof of the 1st Defendant's ownership could not stand.
Legal principles established
#- Under the Land Titles Act (repealed) the 'house without land' phenomenon is recognized: such houses belong to the house owner and cannot be attached and sold without notice to the owner of the houses.
Court orders
#- 1.Judgment entered for the Plaintiffs against the Defendants in terms of prayers (a) and (b) of the Plaint
- 2.A mandatory injunction restraining the 1st and 2nd Defendants from auctioning the Plaintiffs' Swahili houses standing on PLOT NO.143/1/MN Kongowea Mombasa
- 3.Costs and interest of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over the plaint dated 14th November 2008
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juma Mzee Ali & 43 others v Al Mohamed Hatimy & another [2018] KEELC 3849 (KLR)", Case Analysis (2018). Mombasa HCCC (as pleaded, arising from plaint dated 14th November 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3849/eng@2018-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.