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ELCDismissedMalindi HCCC (suit over Portion No. 4314 Malindi; Plaint dated 19th March 2015, filed 20th March 2015)· [2019] KEELC 4926 (KLR)

Alwi Mohamed Alwi v Swaleh Omar Awadh [2019] KEELC 4926 (KLR)

High Court of Kenya
24 January 2019
JOJ. O. Olola
2,173 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Malindi buyer of a 'house without land' lost his case because he couldn't prove where his portion ended and his neighbour's began.

What this practically means

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Executive summary

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The Plaintiff, Alwi Mohamed Alwi, sued the Defendant, Swaleh Omar Awadh, claiming that on 21st September 2007 he purchased a house without land on a portion of Portion No. 4314 Malindi, demolished it in 2012, and that in March 2015 the Defendant erected a structure on the space where his demolished house had stood. He sought a mandatory injunction compelling removal of the structures and the Defendant's eviction. The Defendant denied the purchase, asserting he had leased the entire Portion No. 4314 since 1980 and that his March 2015 construction was merely an extension of his own house. Both parties conceded the land belonged to the family of PW2; neither claimed ownership of it. The court, per J.O. Olola J, noted the controversial 'house without land' concept prevalent on the Coast, adopting Angote J's exposition in Murtahar Ahamed Dahman & Another v Athuman Sudi on the repealed Land Titles Act, and held that the current land law no longer recognises the concept. Critically, the Plaintiff failed to describe or measure the portion he occupied, and his sale agreement described the house as standing on Plot 505/R Malindi although the sub-division creating Portion No. 4314 occurred in 1988, twelve years before his purchase. No survey or report established the alleged encroachment. The suit was dismissed with costs to the Defendant on 24th January 2019.

Key legal issues

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01

Validity and continued recognition of the 'house without land' concept in the Coastal region

Holding

The operative land statutes no longer recognise the concept of a house without land; it survives only under the repealed Land Titles Act regime

Reasoning

The court, adopting Angote J's reasoning in Murtahar Ahamed Dahman, noted that under the repealed Land Titles Act and Mohamedan Law a building erected on another's land did not attach to the land. However, under the current constitutional dispensation and land law regime, and the current definitions of 'land' and 'lease', the concept is no longer recognised.

p. 3
02

Whether the Plaintiff established his portion of the suit property and the alleged encroachment

Holding

The Plaintiff failed to describe the portion he occupied, produced no survey report of the alleged encroachment, and his sale agreement referred to a different parcel (Plot 505/R), lending credence to the Defendant's case

Reasoning

The Plaintiff's sale agreement described the house as standing on Plot 505/R Malindi although the sub-division creating Portion No. 4314 occurred on 25th October 1988, twelve years before the purchase. No acreage, dimensions or survey report of the alleged encroachment were produced, so the court could not find the Defendant had trespassed.

p. 3

Legal principles established

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  • A party claiming rights over a portion of land he does not own must premise those rights on a lease or sale of that specific portion, properly described with distinct identity and dimensions
  • Trespass or encroachment must be proved by clear evidence; absent a survey or report showing the extent of encroachment, no fault can be found

Court orders

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  1. 1.The Plaintiff's suit is dismissed with costs to the Defendant

Authorities

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Legislation

  • Registration of Titles ActCap 281
  • Land Titles ActCap 282

Cases cited (1)

  • Murtahar Ahamed Dahman & Another –vs- Athuman Sudi
    (2013) eKLR
Jurisdiction invoked
Original civil jurisdiction of the High Court over a land dispute (Plaint filed under civil procedure; property at Malindi)

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, "Alwi Mohamed Alwi v Swaleh Omar Awadh [2019] KEELC 4926 (KLR)", Case Analysis (2019). Malindi HCCC (suit over Portion No. 4314 Malindi; Plaint dated 19th March 2015, filed 20th March 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4926/eng@2019-01-24

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