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ELCDismissedELC Case No. 5 of 2019· [2022] KEELC 695 (KLR)

Farid Faraj Awadh v Billy Thuva Kalume & another [2022] KEELC 695 (KLR)

Environment and Land Court
22 March 2022
NMN.A. MATHEKA
1,814 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A land claim failed in Mombasa because the buyer produced no title or search certificate, proving documents matter more than possession.

What this practically means

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Executive summary

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The Plaintiff, Farid Faraj Awadh, sued Billy Thuva Kalume (1st Defendant) and Bernard Ochieng Oluoch (2nd Defendant) claiming he had been in possession of a plot measuring 80 by 50 ft on Plot No. 742/111/MN Mtwapa, having acquired the plot from the 1st Defendant and the building from Ziro Murihe Sudur under a 'house without land' arrangement. He alleged that on 10th December 2018 the 2nd Defendant invaded the plot, demolished his structure and began constructing a permanent building, evicting him. He sought a permanent injunction restraining the 2nd Defendant, alternatively an order evicting the 2nd Defendant and demolishing the new structures, a declaration of entitlement to the portion, and costs. The 1st Defendant did not testify but relied on his defence, submitting that his role was limited to executing the transfer consent as administrator of the estate of Ziro Murihe Sudur in the sale of a house without land, and that any claim for compensation lay against the 2nd Defendant. The 2nd Defendant offered no defence. The court, relying on sections 24(a) and 26(1) of the Land Registration Act and the applied authorities of Elijah Makeri Nyangw'ra and Murtahar Ahmed Dahman, examined the coastal 'house without land' doctrine. It found that the Plaintiff produced no title or search certificate, that ownership of the suit land was not established, and that the rights and capacity of the purported lessor remained undetermined. The suit was dismissed with costs to the 1st Defendant.

Key legal issues

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01

Whether the Plaintiff proved ownership or entitlement to the suit plot

Holding

The Plaintiff failed to establish ownership of Plot No. 742/111/MN Mtwapa; no title or search certificate was produced, and the rights of the purported lessor over the land were undetermined

Reasoning

The court reviewed the Plaintiff's exhibits and found no search certificate or title. Although the sale of the house without land and payment of ground rent were not disputed, the court found the lessor's rights and capacity to lease undetermined. The claim therefore failed on a balance of probabilities.

p. 3
02

The legal effect of registration under the Land Registration Act

Holding

Registration vests absolute ownership, and a certificate of title is prima facie evidence of indefeasible ownership challengeable only on fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition

Reasoning

The court invoked sections 24(a) and 26(1) of the Land Registration Act, and applied Elijah Makeri Nyangw'ra on the limited grounds upon which title may be impugned, to frame the evidentiary burden on a party claiming an interest in registered land.

p. 2
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The 'house without land' concept in the coastal region

Holding

Under the Mohammedan Law and the repealed Land Titles Act, a house built on another's land remains the builder's property, and such interests should be noted on the certificate of title

Reasoning

Quoting Murtahar Ahmed Dahman, the court explained the peculiar coastal concept of owning a house or coconut trees without land, used historically by absentee landlords, and noted that owners of such houses pay monthly rent to the landowner. The court used this to test the Plaintiff's claimed interest.

p. 2

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person (Land Registration Act, s.24(a))
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation or illegal, unprocedural or corrupt acquisition
  • Under the Mohammedan Law and the (repealed) Land Titles Act applicable to the Coast, a building erected by one person on another's land remains the property of the person who erected it
  • A plaintiff bears the burden of proving his case on a balance of probabilities

Court orders

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

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Transfer of Property ActSection 108(h)
  • Registration of Titles ActCap 281
  • Land Titles ActCap 282
  • Eviction of Tenants (Control) (Mombasa) OrdinanceCap 298, Section 2

Cases cited (2)

  • Elijah Makeri Nyangw’ra –vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Murtahar Ahmed Dahman & another vs Athuman Sudi
    (2013) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Environment and Land Court 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, "Farid Faraj Awadh v Billy Thuva Kalume & another [2022] KEELC 695 (KLR)", Case Analysis (2022). ELC Case No. 5 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/695/eng@2022-03-22

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