Sheikh v Kalekye (Environment and Land Appeal E007 of 2025) [2026] KEELC 162 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that 'house without land' arrangements are leases, not Rent Restriction Act tenancies, so courts can hear these disputes.
What this practically means
#Executive summary
#Key legal issues
#Whether the relationship between a landowner and an owner of a house without land is a landlord-tenant relationship governed by the Rent Restriction Act
It is not; the relationship is akin to a lease under Section 105 of the Indian Transfer of Property Act (now repealed), so the Rent Restriction Act does not oust the court's jurisdiction
The court examined the preamble to the Rent Restriction Act, which applies to the letting of dwelling-houses. The pleadings showed the appellant was simply a landowner who allowed the respondent to construct a house without land; the appellant was not the owner of the house, and the respondent's obligation was limited to ground rent for use of a portion of the land. Following Abdukrazak Khalifa Salimu, the relationship is a lease under Section 105 ITPA. The trial court therefore erred in equating it with a landlord-tenant relationship and in declining jurisdiction under the Rent Restriction Act.
Whether the trial court's striking out of the suit and counter-claim for want of jurisdiction should stand
It should not; the judgment was set aside in its entirety and both the suit and the counter-claim were reinstated for hearing on merit
Once the court found that the trial court erred in holding it had no jurisdiction, the appeal necessarily had merit. Because the trial court had struck out both claims without any determination on the merits, the appropriate disposal was to set aside the judgment entirely, reinstate both the suit and the counter-claim, and remit the matter to the Chief Magistrate's Court for hearing before any available magistrate.
Legal principles established
#- The 'house without land' arrangement is a lease within the meaning of section 105 of the (Indian) Transfer of Property Act, not a landlord-tenant relationship governed by the Rent Restriction Act
- A lease arising from a house without land can be terminated by notice; an owner of a house without land is entitled to notice under Section 106 of the ITPA, and the registered proprietor may withdraw the consent permitting the house to remain
Court orders
#- 1.The appeal be and is hereby allowed
- 2.The judgment of the trial court dated 17.01.2025 in Mombasa CMCC No. E20246/2021 is set aside in its entirety
- 3.The appellant's suit as well as the respondent's counter-claim are reinstated for hearing on merit
- 4.The matter is remitted back to the Chief Magistrate's Court for hearing before any available magistrate
- 5.Each party shall bear his own costs of the appeal
- On appeal from
- Chief Magistrate's Court, Mombasa
- Mombasa CMCC No. E20246/2021
- Jurisdiction invoked
- First appeal against judgment and decree of the Principal Magistrate's Court (statutory first-appeal jurisdiction); the judgment does not cite a specific constitutional provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sheikh v Kalekye (Environment and Land Appeal E007 of 2025) [2026] KEELC 162 (KLR)", Case Analysis (2026). Mombasa CMCC E2024 of 2021 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/162/eng@2026-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.