Mwakulagizwa & 32 others v Mwinzangu (Sued as the Administrator of the Estate of Abdulrahman Nassib Ali) (Environment and Land Case 35 of 2018) [2025] KEELC 5476 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that wakf land cannot be sold without authority under the trust deed, so the buyers lost and must vacate within 90 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit property is wakf property
The court found the suit property was wakf property, the defendant having been registered as trustee by a deed of trustee registered in 2004, and the sale agreement itself contemplated revocation of the wakf in the Kadhi's court
The defendant was registered as trustee of a wakf over the suit property in 2004. DW1's unrebutted testimony of attending a Wakf Commissioners' meeting established the property's wakf status from within his knowledge. The three named purchasers were well aware the property was wakf, and clause 4 of the sale agreement provided for removal of the wakf before the Kadhi's court. The court therefore concluded the property was wakf.
Whether the sale agreement dated 5th May 2015 was valid and enforceable
The agreement was validly executed but unenforceable because the vendors lacked capacity to dispose of wakf property absent authority under the Deed of Trustee
The forgery allegation by the defendant was ignored for want of proof, as he tendered only a police O.B. report and no supporting evidence. However, the plaintiffs failed to show the defendant was authorised to dispose of the wakf property or to seek revocation of the wakf in the Kadhi's court as the agreement required; the burden of proof was on them and was not discharged.
Forgery allegation against the sale agreement
The forgery allegation was disregarded because the defendant failed to tender proof beyond lodging a police complaint
Section 109 of the Evidence Act places the responsibility of proving an allegation on the person who raises it. The defendant produced only an O.B. dated 25/3/4/2023 recording a police complaint, with no further proof; the court therefore ignored the forgery claim.
Whether damages for trespass were payable on the counterclaim
Damages for trespass were refused because the defendant produced no valuation report or documentary evidence of damage to the land
Although the counterclaim substantially succeeded, the court applied established principles on computation of trespass damages (diminution in value or cost of reinstatement). Without a valuation report or evidence of nominal damage or wastage, no damages could be assessed. The court also considered the defendant's own complicity in the transactions.
Legal principles established
#- A certificate of title is prima facie evidence of ownership unless challenged on grounds of fraud, irregularity or illegality
- The person who raises a claim or allegation bears the responsibility of tendering proof in support
- A wakf is intended to be perpetual and can only be terminated under conditions envisaged by Islamic law; a wakf cannot be transferred except as per the provisions of a Deed of Trustee
- In civil disputes, proof is on a preponderance of evidence or balance of probabilities; where the court cannot decide, the party bearing the burden of proof loses
- Costs follow the event under section 27 of the Civil Procedure Act unless there is good reason to order otherwise
Court orders
#- 1.The plaintiffs' suit is dismissed for failure to establish their claim on a balance of probabilities
- 2.A declaration is issued that the plaintiffs' occupation and/or presence on Plot No. 428/I/MN is illegal
- 3.The plaintiffs to vacate Plot No. 428/I/MN, demolish their structures thereon and give vacant possession to the defendant as trustee of the wakf within 90 days, and in default an eviction order to issue against them, their agents, servants, employees and representatives
- 4.A permanent injunction restraining the plaintiffs, their agents, servants and/or employees from interfering with the defendant's possession of plot 428/I/MN
- 5.Each party to bear their own costs in the main suit and counterclaim
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to title, occupation and sale of land (Plot No. 428/I/MN)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwakulagizwa & 32 others v Mwinzangu (Sued as the Administrator of the Estate of Abdulrahman Nassib Ali) (Environment and Land Case 35 of 2018) [2025] KEELC 5476 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5476/eng@2025-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.