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ELCAllowedELC Case No. 190 of 2014· [2019] KEELC 1806 (KLR)

Salma Said Salim & another v Feisal Mohamed Ali & another [2019] KEELC 1806 (KLR)

Environment and Land Court
12 July 2019
AOA. Omollo
852 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court cancelled a house sale and ordered eviction because the buyer's paperwork pointed to the wrong plot.

What this practically means

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Executive summary

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The plaintiffs, widow and daughter of the late Omar Mohamed Salim, sued the defendants claiming that the 1st defendant, owner of Plot No. 470/1/MN, had sold their dwelling house (a house without land) on that plot to the 2nd defendant without their consent. They sought revocation of the sale agreement and eviction of the 2nd defendant and his family from the house, plus costs and interest. The defendants filed a joint defence, pleading that the 2nd defendant bought a house without land from Mohamed Musa Mohamed for Kshs 1,000,000 with the 1st defendant's consent, and challenging the plaintiffs' legal capacity. A preliminary objection on capacity was determined on 5th November 2013 by Justice Muya, and the matter proceeded to full hearing in the defendants' absence. PW4, the County Chief Building Inspector, produced a map and approved building plans showing the approved plan for the building on Plot 470/1/MN was issued to Omar Mohamed Salim, while the plan for Plot 217/1/MN was issued to Mohamed Musa Mohamed; the two plots are neighbouring but distinct. The 2nd defendant's own documents - two sale agreements and a building plan - all referred to Plot No. 217/1/MN Mtopanga, not the suit plot. The court found the plaintiffs' unchallenged evidence proved that the widow and children of the deceased are entitled to inherit and claim the structure. Judgment was entered for the plaintiffs as prayed in paragraphs (a) and (b) of the plaint.

Key legal issues

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01

Whether the plaintiffs proved entitlement to the house on Plot No. 470/1/MN

Holding

The court found the plaintiffs, as widow and children of Omar Mohamed Salim, entitled to quiet possession and user of the house without land on Plot No. 470/1/MN.

Reasoning

The 2nd plaintiff produced a marriage certificate showing her marriage to Omar Mohamed Salim, a death certificate showing his death in 2004, and a building plan approved and issued to the deceased over Plot No. 470/1/MN. PW1 testified the deceased began putting up the house before dying before completion. The Building Inspector's evidence confirmed the approved plan for the building on Plot 470/1/MN was issued to Omar Mohamed Salim. The unchallenged documentary evidence established the plaintiffs' entitlement to inherit and claim the structure.

p. 2
02

Whether the 2nd defendant acquired any interest over Plot No. 470/1/MN

Holding

The court held the 2nd defendant had no interest in Plot No. 470/1/MN, as his sale agreements referred to a different plot, Plot No. 217/1/MN Mtopanga.

Reasoning

The 2nd defendant's own replying affidavit annexed two sale agreements and a building plan, all referring to Plot No. 217/1/MN Mtopanga and issued to Mohamed Musa Mohamed. PW4's evidence confirmed that Plot Nos. 470/1/MN and 217/1/MN are neighbouring but distinct plots with separate approved plans. The court therefore found that no interest in Plot No. 470/1/MN had passed to the 2nd defendant from the 1st defendant.

p. 2

Legal principles established

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  • A buyer cannot claim an interest in a property he did not buy, even where a purported vendor purportedly gave consent, and development on property not purchased is at the buyer's own risk.

Court orders

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  1. 1.Revocation of the sale agreement of the dwelling house situated on Plot No. 470/1/MN
  2. 2.Eviction of the 2nd defendant, his friends, relatives or family from the said house
  3. 3.Costs of the suit to the plaintiffs
  4. 4.Interest on costs at court rates
Jurisdiction invoked
Original civil jurisdiction of the High Court (Environment and Land Court) over disputes relating to land in Mombasa

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, "Salma Said Salim & another v Feisal Mohamed Ali & another [2019] KEELC 1806 (KLR)", Case Analysis (2019). ELC Case No. 190 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1806/eng@2019-07-12

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