Sahib & 4 others (All Suing as the Nominees Appointed by His Holiness Dr Mufaddal Saiffudin, The Registered Trustee for and on Behalf of Dawat E Hudiyah, Registered Trustee for and on Behalf of the Bohra Community in Lamu) v Mohamed; Mohamed (Plaintiff to the Counterclaim); Sahib & 4 others (All Being Sued as the Nominees Appointed by His Holiness Dr Mufaddal Saiffudin, The Registered Trustee for and on Behalf of Dawat E Hudiyah, Registered Trustee For And on Behalf of the Bohra Community in Lamu) & another (Defendant to the Counterclaim) (Environment & Land Case 29 of 2016) [2025] KEELC 3225 (KLR)

The plaintiffs' locus stood unchallenged on the evidence; the 5th defendant was a tenant from month to month paying rent. His agreement with the defendant allowed extensive development and shared unspecified rent without payment, and purported to dispose of absolute interest. Terms permitting such a sublease cannot be implied into an oral lease, and due diligence would have revealed the 5th defendant held no registered interest.

There being no privity of contract between plaintiffs and defendant, the surrender of the 5th defendant's lease removed the only bond linking them. No rent was paid by the defendant, and under nemo dat quod non habet the agreement granted him no rights. His occupation after surrender was therefore without basis and he became a trespasser.

Neither of the two written agreements between the defendant and the 5th defendant contained an indemnity clause. Following the Court of Appeal's holding that a court cannot rewrite a contract for the parties, the defendant's claim for indemnity failed.