Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment and Land Appeal (Mombasa) arising from Mombasa CMCC No. 1544 of 2004; Memorandum of Appeal dated 8th August 2019· [2024] KEELC 5725 (KLR)

Omedo v Said & another (Civil Appeal 37 of 2019) [2024] KEELC 5725 (KLR)

Environment and Land Court of Kenya
29 July 2024
LNL.L. Naikuni
7,469 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

#

A Mombasa court confirmed a landowner's right to evict a coastal 'house without land' buyer, but only after proper three-month notice and humane treatment.

What this practically means

#

Executive summary

#
This was a first appeal to the Environment and Land Court at Mombasa against the judgment of Hon. F. Kyambia, SPM in Mombasa CMCC No. 1544 of 2004, dismissing the Appellant's claim as owner of a house without land on Plot No. 1680/VI/MN Magongo and granting the 1st Respondent's counterclaim for vacant possession with 30 days to remove the house or agree compensation. The Appellant had purchased the house without land in 1994 from Asmini Suleiman Muruga and paid ground rent; the 1st Respondent bought the plot from the 2nd Respondent (since deceased, suit against whom abated under Order 24) in 1999. The court identified two issues: the merit of the appeal and costs. Applying the settled duty of a first appellate court to re-evaluate evidence, and endorsing the coastal 'house without land' jurisprudence (Famau Mwenye, Mariam Fadhili), the court held that the arrangement created a lease relationship terminable by notice, and that the 1st Respondent's registered title was indefeasible. The appeal was dismissed. However, invoking constitutional values on housing (Article 43(1)(b)), the Satrose Ayuma line of authority, UN General Comment No. 7 and Section 152E of the Land Act, the court held that the Appellant should not be forcefully evicted but should be accorded humane treatment, including a three-month notice and the option to remove his property or dispose of it to the Respondent at current market rate. Costs of the appeal were awarded to the Respondents.

Key legal issues

#
01

Whether the appeal against the trial court's dismissal of the 'house without land' claim and grant of vacant possession was merited

Holding

The appeal lacked merit; the 1st Respondent is the rightful, absolute and indefeasible owner with the right to possession, and the relationship between the parties was a lease determinable by notice

Reasoning

The court, sitting as a first appellate court, re-evaluated the evidence. It recognized the coastal 'house without land' tenure as creating a lease relationship through periodic payment of ground rent. The Appellant admitted he never sought the landlord's approval under clause 5 of the sale agreement. The 1st Respondent held an unchallenged registered title, so her right to possession prevailed, subject to lawful notice and humane treatment in eviction.

p. 11
02

Whether forceful eviction can be ordered against a lessee without compliance with human rights standards

Holding

Evictions must conform to international and domestic human rights standards; Section 152E of the Land Act requires a notice of not less than three months before eviction from private land

Reasoning

Relying on Satrose Ayuma and the UN General Comment No. 7 and Basic Principles and Guidelines on Development-Based Evictions, the court held forced evictions are prima facie violations of the right to adequate housing. The Appellant was given only 14 days' notice; equity and natural justice required reasonable time to remove his property or dispose of his development at market rate.

p. 12
03

Who bears the costs of the appeal

Holding

Costs follow the event under Section 27(1) of the Civil Procedure Act; the Respondents have the costs of the appeal

Reasoning

The court found the Appellant failed to establish his claim on appeal, so under the proviso to Section 27(1) of the Civil Procedure Act costs follow the event and were awarded to the Respondents.

p. 13

Legal principles established

#
  • The duty of a first appellate court is to reconsider and evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
  • The 'house without land' tenure at the Kenyan coast means the owner of the house is different from the owner of the land, and the relationship created is a lease
  • A lease can be determined by effluxion of time or by notice given in accordance with the lease agreement or the law
  • A certificate of title is prima facie evidence of absolute ownership, and eviction of a lessee must accord with human rights standards, including Section 152E of the Land Act requiring a three-month notice

Court orders

#
  1. 1.The appeal filed through a Memorandum of Appeal dated 8th August 2019 and a 112 pages Record of Appeal is found to lack merit and is dismissed in its entirety with costs
  2. 2.The Court reserves the right to uphold the Judgment of the trial court delivered by Hon. F. Kyambia, SPM in CMCC No. 1544 of 2004 on 19th July 2019
  3. 3.Without prejudice to the foregoing orders, the Appellant should not be forcefully evicted but instead be accorded proper treatment in conformity with known International Conventions and Domestic statutes on Human Rights and in particular Section 152E of the Land Act, to remove all his property or be allowed to dispose of it to the Respondent or anyone else at the current market rate
  4. 4.The Respondents shall have the costs of the appeal to be borne by the Appellant

Authorities

#

Legislation

  • Civil Procedure Act, Cap. 21Sections 78, 79B, 27(1)
  • Civil Procedure Rules, 2010Order 42 Rules 11, 13 and 16; Order 24 Rule 3
  • Transfer of Property ActSections 106 and 108(h)
  • Land Registration Act, No. 3 of 2012Sections 24, 25(1), 26(1), 101
  • Land Act, No. 6 of 2012Sections 150, 152E
  • Environment and Land Court Act, No. 19 of 2011Sections 3 and 13
  • Land Titles Act, Cap. 282 (repealed)Section 55(b)
  • Evidence ActSections 107 and 109
  • Constitution of Kenya, 2010Articles 2(1)-(6), 10(2)(b), 43(1)(b), 48, 159(2)(c), 162(2)(b)

Cases cited (10)

  • Kenya Ports Authority v Kuston (Kenya) Limited
    (2009) 2 EA 212
  • Peter v Sunday Post Limited
    1958 E.A. 424
  • Famau Mwenye & 19 others v Mariam Binti Said
    Malindi H.C.C.C. No. 34 of 2005
  • Christopher Baya and 2 Ors v Philip Kiluko and Another
    Mombasa HC Civil Appeal No. 64 of 2004
  • Mariam Fadhili v Samson Maricho Otweyo & 3 others
    [2016] eKLR
  • Muhiddin Mohamed v Jackson Muthama & 168 others
    [2014] eKLR
  • Changilwa v Kanangu
    (Environment and Land Appeal E042 of 2021) [2024] KEELC 4516 (KLR)
  • Addalhrazak Khalifa Salimu v Harun Rashid Khator & Others
    (2018), COA Civil No. 18 of 2017
  • Jennifer Nyambura Kamau v Humphrey Mbaka Nandi
    [2013] eKLR
  • Satrose Ayuma & 11 Others v Kenya Railways Staff Retirement Benefits Scheme
    Constitution Petition Numbers 65 of 2010
On appeal from
Chief Magistrate's Court at Mombasa
CMCC No. 1544 of 2004
Jurisdiction invoked
First appeal under Section 79B of the Civil Procedure Act, Cap. 21 and Order 42 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010; Court established under Article 162(2)(b) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Omedo v Said & another (Civil Appeal 37 of 2019) [2024] KEELC 5725 (KLR)", Case Analysis (2024). Environment and Land Appeal (Mombasa) arising from Mombasa CMCC No. 1544 of 2004; Memorandum of Appeal dated 8th August 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5725/eng@2024-07-29

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