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ELCDismissedELC Appeal from MCELC No. E104 of 2022 (memorandum of appeal dated 30th July 2024)· [2025] KEELC 339 (KLR)

Sheikh v Ahmed (Environment and Land Appeal E030 of 2024) [2025] KEELC 339 (KLR)

Environment and Land Court
29 January 2025
3,832 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Mombasa against the judgment of Hon. L.K. Sindani, Principal Magistrate, in MCELC No. E104 of 2022 delivered on 4th July 2024. The appellant, owner of subdivision 22367 (C.R. 75191), had sued the respondent, who purchased a temporary Swahili 'house without land' on the suit property from one Swaleh Abudh with the appellant's consent in 2000, subject to monthly ground rent. The appellant alleged non-payment of rent arrears of Kshs. 308,400, unauthorised demolition of the temporary house and erection of a permanent one, and breach of the agreement, and sought eviction, demolition, arrears, special damages and costs. The trial court dismissed the claim, finding the unpaid rent was only Kshs. 48,000 for 2000-2003 and time barred, that only repairs with County Government approval were done, and that no breach was proved. On appeal, the court, applying Selle v Associated Motor Boat Co and Mbogo v Shah, re-evaluated the evidence and found no misdirection by the trial magistrate. It held that a 'house without land' is a lease under section 2 of the Land Act, a practice founded on Islamic law, guided by section 57 on periodic leases, citing the Court of Appeal in Abdukrazak Khalifa Salimu and the Farrar and Charlesworth authorities. It also noted the appellant's true grievance was termination of the tenancy, which was not properly pleaded. The appeal was dismissed, the trial judgment upheld, with costs to the respondent.

Key legal issues

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01

Whether the trial magistrate misdirected herself in finding that the respondent did not breach the agreement by demolishing the Swahili house and erecting a permanent one

Holding

No misdirection; only repairs were carried out with County Government approval, and the sale agreement contained no express terms on rent amount, rent increase, or prior consent for repairs.

Reasoning

The court re-evaluated the evidence as required on a first appeal. The appellant conceded in cross-examination that the agreement he signed did not state the house was temporary, prohibit a permanent house, fix the rent, or require consent before repairs. Photographic evidence showed repairs only, with County Government approval. Applying Mbogo v Shah, the appellate court will not interfere with a discretionary finding absent misdirection, which was not demonstrated.

p. 5
02

Whether the appellant proved arrears of ground rent entitling him to the sums claimed

Holding

No; the unpaid rent was only Kshs. 48,000 for 2000-2003 when the house was in Swaleh's possession, and that claim was time barred, the appellant being guilty of laches in waiting 18 years.

Reasoning

The respondent's evidence that he could not take possession between 2000 and 2003 due to a dispute and court consent with the vendor Swaleh was accepted, as was evidence of payments of ground rent between 2004 and 2022 by the respondent and his witnesses. The appellant failed to rebut this evidence. The trial court's finding that the 2000-2003 arrears claim was limited by time was not faulted.

p. 5
03

The legal character of a 'house without land' and the applicable regime

Holding

A house without land is still a lease under section 2 of the Land Act, a practice founded on Islamic law; periodic lease provisions in section 57 of the Land Act guide such cases, and termination requires statutory notice.

Reasoning

Relying on the Court of Appeal decision in Abdukrazak Khalifa Salimu, the Farrar and Charlesworth authorities on Mohammedan/Islamic law, and the definitions in the Land Act, the court held that house-without-land arrangements are leases. The appellant's notice was not shown to comply with the statutory regime, and the appellant's real grievance (termination of the tenancy) was not properly pleaded, parties being bound by their pleadings.

p. 7

Legal principles established

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  • A first appeal is by way of retrial; the appellate court must reconsider and evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses.
  • An 'house without land' arrangement is a lease within the meaning of section 2 of the Land Act, and agreements over houses without land should be guided by section 57 of the Land Act on periodic leases.
  • Under Islamic law as applied in this jurisdiction, a building erected by one person on another's land does not become attached to the land but remains the property of the person who erected it; the landowner cannot claim possession of such buildings but can only require their removal.
  • Where a lessor consents to extension, improvement or development of a building beyond what is permitted, the lessor must inform the lessee in writing whether consent is given or refused (section 67(2)(e) of the Land Act).

Court orders

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  1. 1.The appeal has no merit and is dismissed.
  2. 2.The judgement of the learned trial magistrate delivered on July 4, 2024 is upheld.
  3. 3.The appellant to bear the respondent's costs of this appeal.

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Land Actsection 2 (definition of lease); section 57 (periodic leases); section 67(2)(e)
  • Law of Contract Act, Chapter 23, Laws of Kenyasection 3
  • Civil Procedure Actsection 27
  • Land Titles Ordinance (Ch. 143)section 20(2)(c) (referred in Farrar)
  • Indian Transfer of Property Act (ITPA/TPA)section 106

Cases cited (11)

  • Selle versus Associated Motor Boat Company Ltd
    [1968] EA 123
  • Mursal & Another versus Manese (suing as the legal administrator of Dalphine Kanini Manesa)
    (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR)
  • Santosh Hazari versus Purushottam Tiwari (Deceased) by L. Rs
    {2001} 3 SCC 179
  • Mbogo & Another versus Shah
    [1968] EA 93
  • Galaxy Paints Co. Ltd. versus Falcon Guards Ltd.
    EALR (2000) 2 EA 385
  • Bid Insurance Brokers Ltd versus British United Provident Fund
    [2016] eKLR
  • Abdukrazak Khalifa Salimu versus Harun Rashid Khator, Ibrahim Rashid & Mustafa Rashid
    [2018] KECA 151 (KLR)
  • William Henry Farrar versus Yusufali Abdulhussein Adamji
    [1934] Vol. XVI. P1 IKLR 40 app 41-43
  • Secretary of State for Foreign Affairs v Charlesworth Pilling & Co. & Another
    [1901] The Law Reports, (HL & PC), 373
  • Abdul Hameed Saif -v- Ali Mohamed Sholan
    (1955), 22 E.A.C.A. 270
  • Secretary of State v Charlesworth
    I E.A.L.R. 24
On appeal from
Principal Magistrate's Court (Mombasa)
MCELC No. E104 of 2022
Jurisdiction invoked
First appeal to the Environment and Land Court from the magistrate's court (appeal by way of retrial); no specific constitutional provision cited

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, "Sheikh v Ahmed (Environment and Land Appeal E030 of 2024) [2025] KEELC 339 (KLR)", Case Analysis (2025). ELC Appeal from MCELC No. E104 of 2022 (memorandum of appeal dated 30th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/339/eng@2025-01-29

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