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ELCPartially AllowedELC No. 151 of 2015· [2019] KEELC 1809 (KLR)

Fatuma Omar Sheikh v Sara Mbaya & 3 others [2019] KEELC 1809 (KLR)

Environment and Land Court
4 July 2019
3,634 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed a 1996 land buyer's ownership because her rival's 2013 sale agreement was unsigned, invalid under Kenyan law.

What this practically means

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Executive summary

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The petitioner, Fatuma Omar Sheikh, petitioned the Environment and Land Court at Mombasa seeking declarations that her constitutional right to property was breached, that she is the lawful owner of unsurveyed plots nos. 29, 30 and 31 at Kanana, Lunga Lunga, Kwale County, that the 1st and 2nd respondents have no rights over the plots, and that the alleged re-allocation by the 3rd respondent was unconstitutional. She pleaded she bought the plots in 1996 from Juma Hamisi for Kshs5,000 and had occupied them since. The 1st and 2nd respondents, claiming under a 2013 sale agreement from Muibu Hassan, denied the petitioner's title; the Attorney General for the 4th respondent contended the petition was out of time and that the petitioner failed to establish ownership by legal process. The petitioner called two witnesses; the 1st and 2nd respondents called six, all of whom denied knowledge of the petitioner and asserted the land belonged to Muibu Hassan, who allegedly only permitted Juma Hamisi to occupy. The court found that Juma Hamisi never denied the sale or his signature on the 1996 agreement, that no written agreement supported the alleged permissive occupancy, and that the 1st respondent's own sale agreement was fatally defective for want of her signature under section 3(3) of the Law of Contract Act. The cited authorities were distinguished. Judgment was entered for the petitioner in terms of prayers (a), (b) and (c); the 3rd and 4th respondents were found not liable; each party was ordered to bear their own costs.

Key legal issues

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01

Whether the petitioner proved ownership of the unsurveyed plots by virtue of a 1996 sale agreement

Holding

The petitioner proved her case; her vendor did not deny the sale and the defence evidence did not displace her claim

Reasoning

The court found that Juma Hamisi never denied the sale or his signature on the 1996 agreement. The defence that Juma only sold coconut trees was unsupported by written evidence or corroborating testimony. Juma did not testify; his wife's evidence was hearsay. The vendor Muibu Hassan's own evidence was inconsistent, and no writing supported the alleged permissive occupancy.

p. 4
02

Whether the 1st respondent's sale agreement complied with section 3(3) of the Law of Contract Act

Holding

The 1st respondent's agreement was fatally defective as she did not sign it

Reasoning

On the face of the document the 1st respondent did not sign the sale agreement of 10th August 2013, contravening section 3(3)(a)(ii) of the Law of Contract Act which requires all parties to sign a land disposition contract.

p. 4
03

Whether injunction can issue over unsurveyed land

Holding

Distinguished: the petitioner identified the specific area claimed, ascertainable by the house built by Micheal

Reasoning

The court distinguished Muthengi Mutemi because the petitioner was specific on the area claimed, which was ascertainable and identifiable by the existence of the house built by Micheal, and no defence witness contradicted her claim to that house.

p. 4
04

Whether the authorities cited by the 1st and 2nd respondents applied

Holding

The authorities cited were distinguishable and of no assistance

Reasoning

Vivo Energy related to striking out a defence under Order 2 rule 15(1) and section 49 of the Sale of Goods Act, with completely different facts. The Muthengi Mutemi injunction authority was distinguished on the facts. The court also noted no reference was made to the Vivo Energy case in the submissions.

p. 4

Legal principles established

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  • A contract for the disposition of an interest in land must be signed by all parties thereto

Court orders

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  1. 1.A declaration that the Petitioner's constitutional rights to property have been breached
  2. 2.A declaration that the Petitioner is the lawful owner and proprietor of the unsurveyed plots nos. 29, 30 and 31 Kanana, Lunga Lunga, Kwale County
  3. 3.A declaration that the 1st and 2nd Respondents have no rights on the plots nos. 29, 30 and 31 Kanana
  4. 4.Each party to bear their own costs of the petition

Authorities

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Legislation

  • Law of Contract ActSection 3(3)(a)(ii)
  • Civil Procedure RulesOrder 2 rule 15(1)
  • Sale of Goods ActSection 49

Cases cited (2)

  • Vivo Energy Kenya Ltd -versus- George Karunji (2014) eKLR
    (2014) eKLR
  • Muthengi Mutemi -versus- Munyoki Kikwu & Another (2018)
    (2018)
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (Land and Environment Court)

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, "Fatuma Omar Sheikh v Sara Mbaya & 3 others [2019] KEELC 1809 (KLR)", Case Analysis (2019). ELC No. 151 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1809/eng@2019-07-04

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