Badri v Mbarak (Land Case 242 of 2020) [2025] KEELC 1491 (KLR)
The bottom line
#The Environment and Land Court in Mombasa dismissed an heir's claim against a buyer who demolished and rebuilt a coastal 'house without land', confirming his right to stay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved ownership of the house-without-land by the estate of his deceased father
The Plaintiff failed to prove his case; the persons who sold and consented to the transactions had full legal capacity and the deceased's estate owned nothing in respect of the house
The court found the Defendant lawfully purchased the house-without-land from Halima Anderson Gylden for Kshs 4,000,000 with consent of Asiya Omar Badru and Abdulmuin Ahmed Salim, who were collecting ground rent and recognised as owners of the ground. The Plaintiff did not discharge the evidential burden under Section 108 of the Evidence Act to show the house belonged to his father's estate. The Kadhi's Court decree confirmed the distribution. The claim failed on a balance of probabilities.
Whether the concept of 'house without land' extends to permanent structures
The court accepted the doctrine of house-without-land as judicially recognised in the coastal region, but held the Defendant's purchase, demolition and rebuilding with consent created a valid tenancy
The court reviewed the coastal concept of 'house without land' as described by Ouko J and Angote J, noting that under the former Land Titles Act Cap. 282 and Mohammedan law a building erected on another's land remains the property of the person who erected it. It accepted the Court of Appeal's characterization of the interest as analogous to a lease, and found the Defendant continued remitting ground rent, sustaining his occupancy rights.
Whether an Originating Summons under Order 37 Rule 1 was the proper procedure
The suit was properly brought under Order 37 Rule 1 as the Plaintiff claimed as heir/cestui que trust under a trust created by the probate will
The court held that heirs are permitted by Order 37 Rule 1 to seek relief not amounting to administration of the estate, including determination of questions affecting their rights as heirs or cestui que trust. Because the Plaintiff claimed under the probate will creating a trust, commencing by Originating Summons was proper, citing Mikesh Manchand Shah and James Njiro Kibutiri.
Costs of the suit
Costs follow the event; the Defendant, having succeeded, is entitled to costs
Relying on Section 27 of the Civil Procedure Act and Morgan Air Cargo Limited v Evrest Enterprises Limited, the court held that costs are discretionary but ordinarily follow the event. Since the Plaintiff failed to establish his case, the Defendant was entitled to the costs of the suit.
Legal principles established
#- The purchase, demolition and rebuilding of a house-without-land with the consent of the owners of the ground creates a valid tenancy agreement entitling the house owner to occupy the land
- A party who desires a court to give judgment as to a legal right dependent on facts he asserts must prove those facts; failing to discharge the evidential burden is fatal to the claim
Court orders
#- 1.Judgment entered that the suit by the Plaintiff/Applicant as per the originating summons dated 23rd December 2020 fails in its entirety and is dismissed as it lacks substance and the Plaintiff failed to prove his case on a balance of probabilities
- 2.The court vacates all interlocutory orders, injunctions and any restraining orders issued against the Defendant in relation to the property in question; the Defendant has full liberty, possession and legal authority to deal with his property as he deems fit and just
- 3.Costs of the suit awarded to the Defendant to be borne by the Plaintiffs jointly and severally
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya and Section 13(2) of the Environment and Land Court Act, 2011; suit commenced under Order 37 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Rotich v Director General National Environment Management Authority & another (Environment and Planning Appeal E002 of 2025) [2026] KEELC 1672 (KLR)[2026] KEELC 1672 (KLR)19 Mar 2026applied
Cite this brief
#Cite this brief
Caselaw, "Badri v Mbarak (Land Case 242 of 2020) [2025] KEELC 1491 (KLR)", Case Analysis (2025). Originating Summons dated 23rd December 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1491/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.