Birithia v Mshila & another (Environment & Land Case 292 of 2018) [2024] KEELC 3718 (KLR)
The bottom line
#A Mombasa court confirmed you can legally own a house without owning the land beneath it, but house owners must pay ground rent.
What this practically means
#Executive summary
#Key legal issues
#Existence and recognition of 'house without land' tenure
The court recognized that a person can own a house without owning the land, a peculiarly coastal tenure form rooted in the Land Titles Act and Mohammedan law.
The court adopted the descriptions in Famau Mwenye and Murtahar Ahamed Dahman: under the repealed Land Titles Act and Mohammedan law, buildings on another's land remain the property of the builder, subject to payment of monthly ground rent, and such interests are noted on the certificate of title. The court also noted the Eviction of Tenants (Control) (Mombasa) Ordinance, and that the phenomenon persists despite the Ordinance lapsing in 1969.
Liability for ground rent from 2015
Rent from 2015 is due and owed to the Plaintiff as registered owner.
The Defendants did not dispute the Plaintiff's ownership, claiming instead they paid ground rent to the advocates of the previous owners. On perusal of the receipts produced, the court found they related only up to 2014, and there was no proof of payment thereafter. DW1 admitted willingness to pay but said the parties could not agree on the rate. The court found the rent due to the Plaintiff.
Whether the house should be demolished
Demolition refused; the houses are protected and the relationship must be resolved as landlord and tenant.
Taking judicial notice that 'houses without land' were recognized under the repealed Land Titles Act, the court held the properties belong to the Defendants and cannot be demolished without following proper landlord and tenant procedure. The Defendants had offered to continue paying ground rent at Kshs 500/= per month and had expressed an intention to purchase the land, so the court converted them into tenants of the Plaintiff instead.
Legal principles established
#- Under the Mohammedan law and the (repealed) Land Titles Act applicable to the coastal region, a building erected by one person on the land of another does not become attached to the land but remains the property of the person who erected it, with monthly ground rent payable to the landowner.
- Where a party erects a building on another's land under an unregistered oral agreement, the tenancy/licence can be determined by 30 days' notice requiring removal of the house and restoration of the land.
Court orders
#- 1.The Defendants are to pay the Plaintiff rent at the rate of Kshs 500/= per month from 2015 to the date of judgment with interest at court rates until payment in full
- 2.The Plaintiff is to treat the Defendants as tenants and be at liberty to renegotiate the rent going forward
- 3.The Defendants to bear the costs of this suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property L.R No. 4745/VI/MN
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Birithia v Mshila & another (Environment & Land Case 292 of 2018) [2024] KEELC 3718 (KLR)", Case Analysis (2024). ELC Case No. 292 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3718/eng@2024-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.