Baghrab v Al-Busaidy & 2 others (Appeal 37 of 2022) [2024] KEELC 1158 (KLR)
The bottom line
#A Malindi builder lost his appeal and must demolish structures erected without the landowner's written consent.
What this practically means
#Executive summary
#Key legal issues
#Whether oral consent to construct on land occupied under a house-without-land arrangement was proved
The appellant bore the burden of proving consent; no consent was proved and any dealing in land had to be in writing under Section 3(3) of the Law of Contract Act.
The court held that the claim that the respondents bore the burden of proof was unfounded. Consent could not be inferred from the respondents' conduct of letting the appellant construct over time and questioning later. No written agreement was produced, and dealings in land must be in writing under Section 3(3) of the Law of Contract Act. The trial magistrate therefore did not err in finding there was no consent.
The viability of the house-without-land tenure concept
The concept of a house without land stands untenable under the Constitution's definition of land and should be eliminated.
The court noted that Article 260 of the Constitution defines land to include the surface of the earth and subsurface rock, ousting the house-without-land concept familiar in Coastal Kenya. Quoting Angote J. in Alwi Mohamed Alwi v Swaleh Omar Awadh, the court endorsed the view that the concept should be buried and forgotten under the current land statutes.
Whether the shops behind the house should have been excluded from demolition
The trial court found the respondents had no problem with the shops, so the court would not interfere.
The court observed that the trial court had noted the respondents raised no issue with the shops behind the house; only the ongoing construction on the house was the subject of the Lower Court suit. The appellate court was therefore unable to look into that matter further.
Whether granting the alternative prayer offended the law
No error: prayer 5 was drafted as an alternative to prayer 4.
The appellant, relying on Olive Mwihaki Mugenda v Okiya Omtata Okoiti, argued that granting both main and alternative prayers offended the law. The court declined to contest the magistrate's conclusions because the prayers were drafted so that prayer 5 was an alternative to prayer 4, which was not awarded.
Legal principles established
#- A person owning a house without land may build on the land only with the owner's consent; absent consent the offending structures must be removed.
- Dispositions of interests in land must comply with Section 3(3) of the Law of Contract Act (in writing, signed and attested).
- He who claims consent must prove it; the burden of proof does not shift to the party denying consent.
Court orders
#- 1.The appeal is dismissed
- 2.The respondents are awarded costs of the appeal and in the Lower Court
- On appeal from
- Magistrates' Court (CMCC)
- Land Case No. 11 of 2019
- Jurisdiction invoked
- First appellate jurisdiction under Section 78 of the Civil Procedure Act (appeal from the Lower Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Baghrab v Al-Busaidy & 2 others (Appeal 37 of 2022) [2024] KEELC 1158 (KLR)", Case Analysis (2024). CMCC Land Case No. 11 of 2019 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1158/eng@2024-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.