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ELCPartially AllowedELC Case No. 292 of 2018· [2024] KEELC 3718 (KLR)

Birithia v Mshila & another (Environment & Land Case 292 of 2018) [2024] KEELC 3718 (KLR)

Environment and Land Court
23 April 2024
2,234 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, registered owner of L.R No. 4745/VI/MN purchased in November 2015 from previous owners, sued the beneficiaries/administrators of the estate of the late Christina Maghanga, who owned a rental 'house without land' erected on his parcel. He sought an order of demolition of the house, or alternatively to treat the occupants as his tenants, plus costs. The Defendants admitted the Plaintiff's ownership but contended they had been paying ground rent to the advocates of the previous owners and were unaware of the change of ownership; DW1 was willing to continue paying rent but said the parties could not agree on the rate. The court, after reviewing the doctrine of 'house without land' unique to the coastal region — grounded in the repealed Land Titles Act, Mohammedan law, and the lapsed Eviction of Tenants (Control) (Mombasa) Ordinance — held that such houses remain the property of the house owner even though the land belongs to another. Perusing the Defendants' receipts, it found payments ceased in 2014 with no proof of payment thereafter, so rent from 2015 was due and owed to the Plaintiff. Demolition was refused because the phenomenon is legally recognized and the houses cannot be demolished without proper landlord and tenant procedure. Judgment was entered for the Plaintiff: Defendants to pay rent at Kshs 500/= per month from 2015 to judgment with interest at court rates; thereafter the Plaintiff to treat them as tenants with liberty to renegotiate rent; Defendants to bear the costs of the suit.

Key legal issues

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01

Existence and recognition of 'house without land' tenure

Holding

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.

Reasoning

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.

p. 3
02

Liability for ground rent from 2015

Holding

Rent from 2015 is due and owed to the Plaintiff as registered owner.

Reasoning

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.

p. 3
03

Whether the house should be demolished

Holding

Demolition refused; the houses are protected and the relationship must be resolved as landlord and tenant.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The Plaintiff is to treat the Defendants as tenants and be at liberty to renegotiate the rent going forward
  3. 3.The Defendants to bear the costs of this suit

Authorities

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Legislation

  • Registration of Titles ActCap 281
  • Land Titles ActCap 282 (repealed)
  • Eviction of Tenants (Control) (Mombasa) OrdinanceCap 298, section 2
  • Transfer of Property Act 1882 of IndiaSections 107 and 108
  • Constitution of KenyaArticle 40

Cases cited (4)

  • Famau Mwenye & 19 others vs Mariam Binti Said
    Malindi H.C.C.C. No. 34 of 2005
  • Murtahar Ahamed Dahman & Another vs Athuman Sudi (2013) eKLR
    (2013) eKLR
  • Arif vs Jadunath Majdma
    (1930) Vol. VII Indian Appeal, 91
  • Said Bin Seif vs Sharif Mohammed Sharty
    (1940-1) part II, Vol. XIX, KLR 9
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property L.R No. 4745/VI/MN

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, "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.