Aly (As trustee of the Wakf Properties of Ali Bin Mohamed Ali Muses Mohamed) & 2 others v Islamic Foundation
The bottom line
#Kenya's Environment and Land Court ruled that a signed, witnessed letter of offer was a binding contract, so the Islamic Foundation keeps 50 acres of Wakf land.
What this practically means
#Executive summary
#Key legal issues
#Existence of a binding agreement between the parties
The Letter of Offer dated March 23, 2009 constituted a valid, legal and enforceable agreement granting the defendant 50 acres of the Wakf land
The court analysed the Letter of Offer and found it contained the ingredients of a contract: offer and acceptance, purpose, conditions, a default clause, governing law, and execution in writing witnessed by the Kadhi of the Mombasa Kadhi's court. It satisfied section 38 of the Land Act requiring a written contract for disposition of an interest in land, signed by all parties and attested by a witness.
Applicability of the Wakf deed's three-year lease restriction
The Wakf deed's restriction on leases beyond three years did not invalidate the transaction because the Letter of Offer was a grant, not a lease or sale
The court held the Letter of Offer referred to a grant of 50 acres with no period specified, so the three-year lease limitation in the Wakf deed did not arise. The purpose - construction of an Islamic university - was in conformity with the Wakf's charitable objects, and no consideration was paid since it was not a sale.
Proprietary estoppel against the plaintiffs
The plaintiffs were estopped from denying the defendant's rights after standing by while the defendant invested heavily and constructed a university
Relying on Titus Muiruri Doge v Kenya Canners Limited, the court found the plaintiffs led the defendant to believe the land was granted, and the defendant invested Kshs 200,000,000 and built a university with 8 blocks and 90 students. The plaintiffs watched comfortably and could not turn around to plead ignorance, lack of consent or authority.
Alleged trespass and forgery of signatures
The defendant was not a trespasser; the allegation of forged signatures failed for want of proof under section 107 of the Evidence Act
The court found the defendant held proprietary interest vested by the agreement. The plaintiffs alleged forgery of signatures on the Letter of Offer but made no police report, produced no expert evidence, and no arrests were made; he who alleges must prove. The claim of a 2005 family meeting rejecting the offer was dismissed as conjecture for want of minutes.
Competence of the defendant's witness
The defendant's witness, though lacking a board resolution, could testify; denying him would condemn the defendant unheard contrary to Articles 50 and 159 of the Constitution
The plaintiffs argued the witness was not a recognised agent under Order 9 rule 9 of the Civil Procedure Rules. The court, in a land matter with its sensitivities, concurred with the defendant that excluding the witness would breach natural justice, relying on Wines and Spirits Kenya Limited v George Mwachiru Mwango.
Legal principles established
#- A letter of offer in writing, signed by the parties and witnessed, constitutes a legal and enforceable agreement for the disposition of an interest in land under section 38 of the Land Act and the Law of Contract Act
- Proprietary estoppel applies where a party is led to believe in a state of facts, acts on it to their detriment, and the other party stands by without stopping them
- Costs follow the event under section 27(1) of the Civil Procedure Act
Court orders
#- 1.Judgment granted against the plaintiffs and in favour of the defendants in accordance with the filed Amended Defence and Counter Claim while the suit by the plaintiffs is dismissed
- 2.A declaration that the plaintiffs had the legal capacity, authority and/or mandate to grant the defendant the 50 acres of land from the Wakf property created by Muses Mohamed
- 3.An order that the 50 acres parcel of land granted to the defendants pursuant to the Letter of Offer/Agreement dated March 23, 2009 be annexed and sub-divided from the larger portion of Plot No 9 Section III measuring 162 acres being CR No 5792/1 and subsequently transferred to the defendant
- 4.An order directed to the Land Registrar, Mombasa, within sixty (60) days of the judgment, to hive off and/or excise a portion measuring fifty (50) acres from the larger portion of Plot No 9 Section III measuring 162 acres being CR No 572/1 and transfer it to the defendant at their own costs on the required statutory dues
- 5.The costs of the suit to be borne by the plaintiffs
- Jurisdiction invoked
- Sections 3 and 13 of the Environment and Land Court Act, No 19 of 2011; Articles 159(1) and (2) of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aly (As trustee of the Wakf Properties of Ali Bin Mohamed Ali Muses Mohamed) & 2 others v Islamic Foundation", Case Analysis (2022). Environment & Land Case 219 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14469/eng@2022-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.